Madron v. McCoy

• Decision Date: 25 April 1942
• Docket Number: 6975
• Citation: 126 P.2d 566,63 Idaho 703
• Parties: RODNEY MADRON, Appellant, v. LEE McCOY and CARSTENS PACKING COMPANY, a corporation, Respondents
• Court: Idaho Supreme Court

126 P.2d 566

63 Idaho 703

RODNEY MADRON, Appellant, v. LEE McCOY and CARSTENS PACKING COMPANY, a corporation, Respondents

No. 6975

Supreme Court of Idaho

April 25, 1942

(Rehearing denied June 22, 1942)

AUTOMOBILES - INJURIES FROM OPERATION - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE-BURDEN OF PROOF-PROXIMATE CAUSE-FAILURE TO SIGNAL.

1. A driver of truck, struck by following truck when he started to turn left into intersecting road, will be assumed to have known, as required by law, that such other truck was following him.

2. It was duty of driver of truck, following another truck, to observe front truck and regulate his speed, so as to avoid collision therewith, while both were proceeding in same direction without any signal or warning being given of intention of driver of front truck to change his course or speed.

3. The failure of driver of truck, followed by another truck, to give appropriate signal of his intention to change course or suddenly decrease speed, as required by statute, constituted "negligence" and "misdemeanor." (I. C. A sec. 48-557 and sec. 48-517 as amended by Sess. L., 1939, c 108.)

4. A truck driver's negligence in slowing down and starting left turn into intersecting road, without giving signal of such intention to driver of following truck, was "proximate cause" of fatal injury to such driver and damage to his truck when he crashed into tree at corner of intersection after hitting side of front truck in attempting to pass it on left side. (I. C. A. secs. 48-514, 48-557 and 48-517, as amended by Sess. L., 1939, c. 108.)

5. A truck driver, overtaking truck ahead of him on its arrival at intersection with rural road, which was narrower than length of either truck, and attempting to pass front truck within intersection at time of collision resulting from negligent failure of driver of such truck to give signal of his intention to make left turn into such road, was not guilty of negligence, constituting contributing cause of accident, in overtaking and attempting to pass front truck at intersection without permission of traffic or police officer in violation of statute. (I. C. A. sec. 48-513 and sec 48-535, as amended by Sess. L., 1939, c. 103.)

6. Contributory negligence is matter of defense and must be pleaded.

7. The burden of proving contributory negligence is on party setting up such defense to action. (I. C. A. sec. 5-816.)

8. One accidentally killed is presumed to have been exercising reasonable care and precaution for protection and preservation of his person and life at time of accident.

9. In action to recover damages for loss of truck, demolished by crash into tree at corner of highway intersection after collision with another truck, which driver of demolished truck was attempting to pass on left from rear, as result of negligent failure of driver of such other truck to give signal of his intention to make left turn, evidence held insufficient to establish contributory negligence of driver of demolished truck.

(Rehearing denied June 22, 1942.)

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. James W. Porter, Judge.

Action for damages. Judgment for defendants. Plaintiff appeals. Reversed and cause remanded.

Reversed and remanded. Costs to appellant.

Rayborn & Rayborn, for Appellant.

It is unlawful for the operator of a motor vehicle to make a left turn on to an intersecting road without signalling for 100 feet before making such turn, by statutory hand signals or by signalling device. (Idaho Sess. Laws, 1939, Chap. 108, p. 182.)

It is unlawful for a person to operate a motor vehicle on the public highways without being properly licensed. (Sec. 7, Art. 11, Chap. 88, 1935 Sess. Laws.)

The driver of appellant's truck was presumed to be exercising due care, and such presumption was not overcome by clear, convincing or uncontradicted evidence. (Geist v. Moore, 58 Idaho 149.)

The evidence establishes that the accident was caused by the negligence of the driver of respondent's truck in operating said truck without the same being equipped with signaling device or rear vision mirror, while driven by an unlicensed driver and in making a left hand turn without signal of any kind. (Kelly v. Troy Laundry, 46 Idaho 214; Miller v. Gooding Highway, 55 Idaho 264; Tendoy v. West, 51 Idaho 683; Nelson v. Inland Motor Freight Co., 60 Idaho 443; Tackett v. Taylor County, 98 N.W. 730.)

Elam & Burke, for Respondents.

The Legislature has provided that the driver of a motor vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any intersection. (Sec. 48-513 Idaho Code Annotated.)

Violation of a positive traffic law constitutes negligence per se. (4 Blashfield Ency. of Automobile Law & Practices, Sec. 2681, p. 483; Asumendi v. Ferguson, 57 Idaho 450, 460, 462; Tendoy v. West, 51 Idaho 679.)

If casual connection is necessarily inferred or proven contributory negligence is established. (Tendoy v. West, 51 Idaho 679, 683; Rowe v. No. Pac. Ry. Co., 52 Idaho 649; Dale v. Jaeger, 44 Idaho 576.

AILSHIE, J. Budge and Holden, JJ., concur. GIVENS, C.J., Morgan, J., dissenting.

OPINION

AILSHIE, J.

--Appellant, a resident of Twin Falls County, was engaged in the trucking business and owned and operated a 1939 "Mercury Model" Ford truck and semi-trailer, which will hereinafter be referred to as the brick truck. Richard T. White was employed by appellant as driver and was hauling brick. Respondent, Carstens Packing Company, a corporation, employed Lee McCoy, also a respondent, as driver for its, hereinafter designated, stock truck, used "to haul chopped hay and cattle." McCoy had no driver's license.

The brick truck was equipped with hydraulic brakes, signaling device and a rear view mirror; the semi-trailer was equipped with air brakes, controlled from the steering wheel of the truck. As for the stock truck, it was a 1928 Fageol, "had no rear view mirror and no mechanical arm for use in indicating intention to turn"; the body of the truck was so high and wide, that the driver "could not see what was following him from the rear and could not give any signal of intention to turn to the left."

About two o'clock p. m., November 5, 1940, McCoy was proceeding with the stock truck in a westerly direction on U.S. Highway 30, about two miles east of the Village of Kimberly in Twin Falls County. Near this point there is a gravelled farm market road, running north and south, which intersects U.S. Highway 30; the latter is paved and runs east and west. The highway is "straight right there" and for considerable distance each way. Following the stock truck (but unknown to its driver, McCoy) was White, driving appellant's truck, with a trailer, loaded with "around fourteen ton" of brick. McCoy says he reached a point "about two telephone posts" (200 feet) back of the intersection of the two roads above mentioned and noticed another car (later identified as the Powers car) approaching from the opposite direction; that he slowed down, from a 25 to a 10-mile an hour speed, as he figured, if he kept on traveling at the 25-mile pace, he would reach the intersection at the same time as the other car. When the Powers car reached the intersection, it turned south on to the gravelled road.

Upon reaching the intersection, the stock truck, without signal or warning of any kind from the driver (McCoy), turned slightly left and south toward the side road, intending to go south on the intersecting road. White driver of the brick truck, not having notice of McCoy's intention to turn, and apparently endeavoring to avoid running into the stock truck, pulled to the left, avoided a rear end collision, and hit the side of the stock truck "about three feet from the rear end and scraped the full length along the side." The brick truck then crashed head-on into a tree at the southwest corner of the intersection, killing White, demolishing the brick truck, and damaging the semi-trailer. This action was brought by the owner of the brick truck and trailer, for damages for the loss of the truck, for costs and disbursements expended. From a judgment for defendants, this appeal is prosecuted.

The case was tried to the court without a jury and the court found, inter alia:

"V.

"That the act of defendant, Lee McCoy, in attempting to make a left turn into said intersecting highway at said intersection contributed to said accident.

VI.

"That the overtaking and passing by plaintiff of defendant's truck in said intersection contributed to said accident.

VII.

"That there is a presumption that the driver of plaintiff's truck and semi-trailer drove said truck and semi-trailer in a careful and prudent manner; that plaintiff proved that defendant, Lee McCoy, was making a left hand turn in said intersection without giving a signal and without any rear view mirror or mechanical device by a preponderance of the evidence; that the defendants proved that plaintiff's truck was overtaking and passing defendants' truck in said intersection by a preponderance of the evidence."

It is contended by appellant that there is no sufficient evidence to support the finding, that appellant's driver was guilty of contributory negligence in attempting to overtake and pass respondent's truck at the intersection.

During the inquest, Nov. 6, 1940, on the death of White, testimony was given by Mr. Powers, (the driver of the car traveling in an easterly direction on U.S. Highway 30) in part as follows:

"We had observed these vehicles approaching from the east. They were travelling westward, and of course we turned south. They were down the highway just a little distance. . . . I was looking in the rear view mirror and I just remarked there was going to be a...