Lehmkuhl v. Bolland

• Decision Date: 16 June 1988
• Docket Number: No. 16775,16775
• Citation: 757 P.2d 1222,114 Idaho 503
• Parties: Donald J. LEHMKUHL and Jill Lehmkuhl, husband and wife, Plaintiffs-Appellants, v. Herbert M. BOLLAND, Defendant-Respondent.
• Court: Idaho Court of Appeals

Page 1222

757 P.2d 1222

114 Idaho 503

Donald J. LEHMKUHL and Jill Lehmkuhl, husband and wife, Plaintiffs-Appellants, v. Herbert M. BOLLAND, Defendant-Respondent.

No. 16775.

Court of Appeals of Idaho.

June 16, 1988.

Petition for Review Denied July 11, 1988.

J.D. Hancock of Smith & Hancock, Rexburg, for plaintiffs-appellants.

Michael D. Gaffney of Quane, Smith, Howard & Hull, Pocatello, for defendant-respondent.

SUBSTITUTE OPINION

The Court's prior opinion, dated February 1, 1988, is hereby withdrawn.

WALTERS, Chief Judge.

This is an appeal from an order denying a motion by the plaintiffs Donald and Jill Lehmkuhl for new trial, in a personal injury action tried to a jury. Because we conclude the jury's verdict was contrary to the clear weight of the evidence, we reverse the order denying the Lehmkuhls' motion, and we remand for a new trial.

Certain facts in this case are undisputed. They are as follows. On December 12, 1984, shortly after 5:00 p.m., Donald Lehmkuhl was driving a Dodge Colt automobile he had recently purchased, in a southerly direction along U.S. Highway 20 approximately one and one-half miles south of Ashton, Idaho. Lehmkuhl was being followed in another car by his stepfather, Harry Housley. It was getting dark and there was some snow on the road surface. The Dodge suffered electrical problems, causing Lehmkuhl to pull over to the west shoulder of the highway. After parking the car, Lehmkuhl continued with Housley in the latter's vehicle to the Lehmkuhl residence. There they picked up a battery and returned north to the disabled vehicle, in a Ford pickup truck belonging to Lehmkuhl. When they arrived at the location of the Dodge, Lehmkuhl crossed the highway and positioned his pickup truck directly in front of and facing the disabled Dodge. Lehmkuhl left the pickup's headlights on. Lehmkuhl and Housley got out and began to repair the Dodge. Lehmkuhl raised the hood on the automobile in order to replace the battery. In the meantime, Herbert Bolland was driving south on Highway 20 from Ashton. When Bolland approached the Lehmkuhl vehicles, he collided with the left rear portion of Lehmkuhl's disabled Dodge. Both Lehmkuhl and Housley, who were standing between the Dodge and Lehmkuhl's Ford pickup, were injured as a result of the collision. They sued Bolland. Lehmkuhl's wife, Jill, also sued for loss of consortium resulting from her husband's injuries. Bolland counterclaimed.

At trial, the dispute centered on the precise location of the Lehmkuhl vehicles prior to the accident. Bolland asserted the Lehmkuhl pickup was improperly parked with a portion of the pickup protruding into the southbound lane. He testified that the right headlamp of Lehmkuhl's pickup gave him the impression that a vehicle was occupying his traffic lane and he pulled to his right, into the emergency lane, to avoid a collision. To the contrary, Lehmkuhl maintained that his pickup truck was completely within the boundary of the emergency lane. The deputy sheriff who responded to the accident was unable to produce any recording of measurements from the accident scene but did "guess" that the Lehmkuhl pickup was improperly parked. The deputy also estimated the damage to the Lehmkuhl vehicles at approximately $2500. An accident reconstructionist testified that, from studying photographs of the damaged vehicles and tire marks, the pickup truck was not parked in the southbound traffic lane. Various other witnesses offered conflicting recollections regarding the pickup's location.

The jury returned a special verdict finding Harry Housley not negligent in causing the accident. The jury awarded him $2500 in damages. ¹ The jury found Donald Lehmkuhl fifty percent at fault and awarded no damages to him. The verdict also awarded no damages to Jill Lehmkuhl. Further, the jury found Herbert Bolland fifty percent at fault and awarded him no damages on his counterclaim.

After the Lehmkuhls' motion for a judgment notwithstanding the verdict (or in the alternative, for a new trial) was denied, a judgment consistent with the verdict was entered. The Lehmkuhls then filed this appeal. The Lehmkuhls contend (1) the district court erred in not granting their motion for a new trial or for judgment n.o.v., asserting the verdict was against the weight of the evidence and the law; (2) the district court erred in not allowing the Lehmkuhls' counsel an opportunity to read and consider jury instructions prepared by the court, outside the presence of the jury, prior to the giving of those instructions; (3) error was committed when the district court failed to give certain instructions requested by the plaintiffs; (4) the court erroneously assessed costs against Jill Lehmkuhl in the absence of finding that an offer of judgment had been made to her; and (5) error was committed by the court in not admitting evidence concerning Bolland's driving at a time several hours prior to the accident.

From our review of this case, we conclude that Lehmkuhls' first issue raised on this appeal is dispositive. We hold that the district court should have granted a new trial on the grounds of insufficiency of the evidence to support (1) a finding of fifty percent negligence on the part of Donald Lehmkuhl, and (2) a finding that Donald Lehmkuhl suffered no damages. Upon those two points, the jury's verdict is not in accord with the clear weight of the evidence.

Because we hold that a new trial should be granted in this case, we also will provide guidance to the trial court on another issue raised by the Lehmkuhls: the admission of evidence concerning Bolland's driving several hours before the accident. As to that issue, we sustain the trial court's exclusion of the evidence.

I Motion for New Trial

On review of an order denying a motion for new trial predicated upon the sufficiency of the evidence, we are not concerned with whether there is substantial evidence upon which the jury rendered its verdict--as would be the case in reviewing an order denying a motion for judgment n.o.v. Rather, the pertinent standard is whether the trial judge abused his discretion in failing to find that the verdict was against the clear weight of the evidence.

In approaching the issue of whether a new trial should be granted on grounds of insufficient evidence to support a jury's verdict, we find guidance in our Supreme Court's recent unanimous opinion in Garrett Freightlines, Inc. v. Bannock Paving Co., Inc., 112 Idaho 722, 735 P.2d 1033 (1987). In that case, a jury had determined that both Garrett and Bannock Paving were equally negligent in causing a multiple-vehicle collision at a construction site on the interstate freeway. Bannock Paving's motion for a new trial was denied by the trial court and Bannock appealed, contending the evidence at the trial did not support the jury's assessment of negligence, causation and concomitant liability. The Supreme Court reviewed the evidence adduced at the trial and concluded that, although there was evidence of negligence on the part of both Garrett and Bannock Paving, "no reasonable jury could have found, as the jury in the present case found, that the negligence of Bannock was equal to the negligence of the Garrett truck driver." 112 Idaho at 728-29, 735 P.2d at 1039-40. The Court specifically determined that the jury's finding of equality of negligence was "against the great weight of the evidence." 112 Idaho at 729, 735 P.2d at 1040. The Court concluded: "Because the jury's verdict in the present case was against the great weight of the evidence, the trial court erred in denying Bannock's motion for a new trial." 112 Idaho at 730, 735 P.2d at 1041 (citing I.R.C.P. 59(a)(6) and Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986)).

We are faced with a similar situation in the present case. Our review of the evidence reveals the following. Don Lehmkuhl related that he parked his Dodge on the west side of the fog line. In order to avoid any interference with the southbound lane of traffic, he parked his Ford pickup directly in front of the Dodge, to the west of the fog line, with its lights on dim and with its emergency flashers on. With respect to their claimed losses resulting from the accident, the Lehmkuhls also submitted out-of-pocket expenses for medical bills and vehicular damages totaling $5,281.75.

The next witness who testified was Burt Bates, a Fremont County deputy sheriff. He did not take any measurements and he was not aware of the exact location of the vehicles prior to the accident. Deputy Bates merely testified from the conclusions which he had recorded on his accident report. Deputy Bates did admit that it was not unusual for vehicles to be parked in the posture described by Lehmkuhl, given the particular circumstances involved.

The plaintiffs next called as an expert witness Cpl. Arnold O. Young, with the Idaho State Police. Young indicated that the emergency lane was being correctly used by Lehmkuhl at the time of the accident. Officer Young further testified that it was very "abnormal" for a vehicle to run off the right side of the road into the emergency lane and then collide with a disabled vehicle that was legitimately stalled in the emergency lane on the west side of the fog line.

Two doctors, Dr. Sam Richard and Dr. Henry G. West, testified with respect to injuries sustained. Dr. West established that in his opinion Don Lehmkuhl had a fifteen percent impairment of the whole man and that Harry Housley had a five percent permanent partial impairment.

Charles L. Rawson testified that he had gone to Ashton earlier in the evening and had seen the Dodge automobile parked off to the side. He later came by the scene immediately following the accident. He said he did not encounter any problem in going south past the accident scene.

George Amen, who operated a wrecking service in Ashton, testified that when he arrived at the scene the four-way flashers were still blinking on Lehmkuhl's pickup. Because he, Amen,...