Mann v. Gonzales, 12985

• Citation: 100 Idaho 769,605 P.2d 947
• Decision Date: 17 January 1980
• Docket Number: No. 12985,12985
• Parties: Kenneth G. MANN and Lillian Mann, husband and wife, Plaintiffs-Appellants, v. Javier Francisco GONZALES, Individually, and C. M. Gulbranson, Individually, Defendants-Respondents.
• Court: United States State Supreme Court of Idaho

Page 947

605 P.2d 947

100 Idaho 769

Kenneth G. MANN and Lillian Mann, husband and wife, Plaintiffs-Appellants, v. Javier Francisco GONZALES, Individually, and C. M. Gulbranson, Individually, Defendants-Respondents.

No. 12985.

Supreme Court of Idaho.

Jan. 17, 1980.

Rehearing Denied Feb. 29, 1980.

Lloyd J. Webb of Webb, Burton, Carlson, Pedersen & Paine, Twin Falls, for plaintiffs-appellants.

Richard C. Mellon, Jr., of Elam, Burke, Jeppesen, Evans & Boyd, Boise, for defendants-respondents.

SHEPARD, Justice.

This is an appeal from a judgment entered upon a jury verdict in favor of the defendants in an action for personal injuries and property damage allegedly suffered by plaintiffs as a result of an automobile accident.

The accident occurred on a city street in Twin Falls and it was generally agreed that the roads were "slick." The street is 33 feet wide at the scene of the accident.

According to the testimony of defendant Gonzales, he was driving down the street at approximately 20 to 25 miles per hour when he noticed the Mann car some distance ahead traveling in the same direction. The posted speed limit in that area was 25 miles per hour. Gonzales testified he had no difficulty handling his car prior to the accident, and that he paid no particular attention to the Mann car until he was some six or seven lengths away, at which point Gonzales slowed his vehicle. As Gonzales approached the Mann car from the rear, the Mann car, in attempting to negotiate a right turn at an intersection, struck the east curb and bounced back out into the lane of traffic and stopped. Gonzales applied his brakes and attempted to steer to the left of the Mann vehicle, but his efforts to do so were hampered by the presence of an oncoming vehicle. He was unable to avoid the Mann vehicle and struck its left rear. An officer investigated the accident and estimated that at the time of the collision the right rear of plaintiff's automobile was three feet or more from the east curb. He further testified that the front of the Mann vehicle was some two to two and a half feet from the curb at the time of the accident. Thus, it was the officer's opinion that the left rear of the Mann vehicle was protruding into the main traveled portion of the roadway.

Mann, on the other hand, testified that she was driving at approximately "five miles per hour," and that as she approached the intersection where she desired to turn right, she drove her car into the parking lane bordering the city street, and that her car slid and the right front tire hit the curb. She testified that she did not bounce away from the curb, that her right front tire was touching the curb after the car stopped, and that the rear of her car was approximately one and one-half feet away from the curb. That testimony is obviously in direct conflict with other versions of the accident.

Following the trial of the action, the matter was submitted to the jury on a special verdict form, to which neither party objected. In answer to the question, "Was the defendant Javier Francisco Gonzales negligent and if so was his negligence a proximate cause of the accident and resultant injuries and damages," ten of the jurors answered "No," and two answered "Yes." In answer to the second question on the special verdict form, "Was the plaintiff Lillian Mann negligent, and if so was her negligence a proximate cause of the accident and resultant injuries and damages" all twelve jurors responded "Yes." Judgment was entered upon the verdict in favor of the defendant and defendant was awarded his costs, including attorney's fees.

Appellants contend that the facts in this matter are such as to require a determination of at least some degree of negligence on the part of defendant Gonzales. The form of the questions posed in the special verdict form (and not objected to by plaintiffs) preclude the isolation of the issue of defendant's negligence from the issue of proximate cause. Because of the form of the questions, the jury's verdict is susceptible to two interpretations: (1) there was no negligence on the part of defendant Gonzales, or (2) Gonzales was negligent but his negligence was not a proximate cause of the accident. See Stoddard v. Nelson, 99 Idaho 293, 581 P.2d 339 (1978). Questions of negligence and proximate cause are to be resolved by the trier of the fact, and the resolution of those questions will not be set aside on appeal if it is supported by substantial and competent evidence. E.g., Stoddard v. Nelson, supra; Berg v. Mengore, 271 Or. 530, 533 P.2d 801 (1975). See also, Eckman v. Jones, 85 Idaho 10, 375 P.2d 180 (1962); Barry v. Arrow Transp. Co., 80 Idaho 447, 333 P.2d 1008 (1958). There is evidence which will support a finding of a lack of causal relationship between the alleged negligence of Gonzales and the accident, and, hence, even if Mann is correct in her assertion, the verdict of the jury will not be disturbed.

Appellant also assigns error in the failure of the trial court to give her proposed instruction no. 19, dealing with the obligation of a driver under the then existing conditions and circumstances to drive in such a manner as to be able to stop to avoid collision with a vehicle ahead. The substance of that proposed instruction was adequately covered elsewhere and, hence, the trial court did not err in refusing to give appellant's proposed instruction. E.g., Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972).

Appellant next assigns error to instruction no. 15 by the trial court drawn from Bale v. Perryman, 85 Idaho 435, 380 P.2d 501 (1963). That instruction provided:

"You are instructed that certain circumstances furnish an excuse or justification for the negligence presumed to arise on proof of violation of a statute or ordinance. Such circumstances may generally be classified in four categories: (1) Anything that would make compliance with the statute impossible; (2) Anything over which the driver has no control which places his car in a position violative of the statute; (3) An emergency not of the driver's own making by reason of which he fails to obey the statute; (4) An excuse specifically provided by statute."

Appellants argue that the giving of said instruction was prejudicial and reversible error because the facts presented at trial did not properly present the issue of excuse or justification for violation of a statute. Plaintiffs rely primarily on Werth v. Tromberg, 90 Idaho 204, 409 P.2d 421 (1965). We disagree, and deem that plaintiffs' reliance on Werth is misplaced. The holding in Werth was based on the rationale that "(t)here were no facts presented which justified instructing the jury on the exemption from compliance with the statute." Here, however, the evidence presented at trial raised the issue of the presence of a "sudden emergency" and Werth is, therefore, inapplicable.

After appellant Mann signaled her intention to turn right at the intersection and pulled off the traveled lane portion of the street into the parking lane, Gonzales was not under the necessity of anticipating that Mann would so negligently operate her car that she would strike the curb and rebound therefrom into the traveled lane of traffic, thus presenting a "sudden emergency." Even assuming that Gonzales was negligent in following the Mann vehicle too closely, clearly if the jury believed the testimony of Gonzales and the investigating officer, and disbelieved the testimony of Mann, the jury could have excused this negligence because of the existence of the "sudden emergency" confronting Gonzales.

The propriety of giving an instruction such as instruction no. 15 is assessed by determining whether the issue was raised either in the pleadings or by sufficient factual basis in evidence introduced at trial. Annot., 80 A.L.R.2d 5 (1961). Here, the evidence adduced at trial raised issues as to Gonzales' negligence both before and after the arising of the emergency and, therefore, instruction no. 15, relating to excuse and justification, was properly given. Weaver v. Sibbett, 87 Idaho 387, 393 P.2d 601 (1964). Once an issue is presented at trial and supported by evidence, it is the duty of the trial court to instruct the jury on that issue. E.g., Rosenberg v. Toetly, 94 Idaho 413, 489 P.2d 446 (1971).

Finally, appellants assign as error the awarding of attorney's fees to defendants. This assignment is unsupported by either authority or argument, and, therefore, will not be reviewed. E.g., Voyles v. City of Nampa, 97 Idaho 597, 548 P.2d 1217 (1976).

The judgment is affirmed.

DONALDSON, C. J., and DUNLAP, J. Pro Tem., concur.

BAKES, Justice, concurring specially:

I think the problem in this case stems from the different view of the facts which is apparent from reading the majority and dissenting opinions. Also there is a failure to adequately distinguish between the "sudden emergency" instruction, of which Dewey v. Keller, 86 Idaho 506, 388 P.2d 988 (1964), is typical, and the instruction given in this case, which is more appropriately called a "justification" or "excuse" instruction. As the majority opinion points out, one view of the evidence supports the conclusion that Mrs. Mann "drove her car into the parking lane bordering the city street," Ante at 948, and that in the process her right front tire hit the curb which caused the left rear of her automobile to bounce back into the traveled portion of the roadway. However, the dissenting opinion seems to assume that the Mann vehicle was in the traveled lane of traffic until it "slid into the curb on attempting to turn at the intersection." Post at 953. Thus the dissenting opinion finds this case "on all fours with" Hackworth v. Davis, 87 Idaho 98, 390 P.2d 422 (1964). However, it must be apparent that if the plaintiff Mann did in fact "(drive) her car into the parking lane bordering the city street" and then commenced a right turn which resulted in her sliding into the curb which caused the rear of her car to...