Matheson v. Idaho Hardware & Plumbing Co.

• Citation: 75 Idaho 171,270 P.2d 841
• Decision Date: 28 April 1954
• Docket Number: No. 8020,8020
• Court: United States State Supreme Court of Idaho
• Parties: MATHESON v. IDAHO HARDWARE & PLUMBING CO., Limited et al.

Page 841

270 P.2d 841

75 Idaho 171

MATHESON v. IDAHO HARDWARE & PLUMBING CO., Limited et al.

No. 8020.

Supreme Court of Idaho.

April 28, 1954.

Rehearing Denied June 3, 1954.

J. F. Martin and C. Ben Martin, Boise, for appellants.

Elam & Burke, Boise, for respondent.

TAYLOR, Justice.

On August 21, 1952, at a few minutes past 1:00 o'clock p. m., a collision occurred between a truck, owned by the defendant (appellant) Idaho Hardware & Plumbing Co., Ltd., and driven by its employee, Fay Smith, defendant (appellant), and a motorcycle owned and operated by the plaintiff (respondent). The collision occurred in the city of Boise, on 8th Street at a point approximately 94 feet south of the south curb line of Myrtle Street, which intersects 8th Street at right angles. Eighth Street extends in a generally north and south direction.

The plaintiff, a youth of twenty years, suffered personal injuries in the collision and brought this action to recover damages, alleging that negligence on the part of Smith in the operation of the truck was the proximate cause of the injuries sustained. The defendants allege negligence on the part of the plaintiff as the proximate cause of the collision. From a judgment on the verdict in favor of the plaintiff, defendants appeal. The sole issue presented is the sufficiency of the evidence to support the judgment.

The facts are briefly as follows: August 21, 1952, was a clear, hot day and the pavement was dry. Eighth Street is a designated arterial or through street, and the maximum legal speed limit thereon is thirty miles per hour. Stop signs are maintained at the points of entry from intersecting streets and there was such a sign on Myrtle Street at the point where defendants' truck entered the intersection. Smith, the driver, and a co-employee had just finished their lunch period and were on their way to a warehouse of their employer on 8th Street. They approached 8th Street from the east on Myrtle Street and came to a full stop near the center line opposite the stop sign. Smith, by extending his arm, indicated a left turn. A vehicle behind him pulled up to his right and made a right-hand turn onto 8th Street. Smith looked to the north and abserved the plaintiff on his motorcycle going west across the sidewalk and through a way in the curbing which opens onto 8th Street from a service station some forty or fifty feet beyond and north of the intersection of 8th and Broad Streets. Broad Street is a street running parallel to Myrtle and intersecting 8th Street one block to the north. Smith then looked to the south and, observing no oncoming north bound traffic on 8th, proceeded into the intersection. He testified he had attained a speed of ten miles per hour in traversing the intersection, and that when he had half completed his turn he again observed the plaintiff approaching the intersection from the north at what he described as a high rate of speed, and at a point one-third to one-half of the way up the block from the intersection. Asked why he did not stop at that point, he replied: 'I thought it best to get in the main line of traffic. There was still quite a distance between us.' Smith then completed his turn, entering the west side of 8th Street near the center line and proceeded south parallel to the center line, with the left side of the truck approximately three feet to the west of the line. In making this turn he did not go around the center point of the intersection, but angled more or less directly across from his starting point to where he entered the south bound lane on 8th. After making the turn the speed of the truck was increased to approximately fifteen miles per hour.

The plaintiff testified that he had just finished his lunch at a 'drive-in' or 'curb-service' across from the service station at the intersection to 8th and Broad Streets; that he went across to the service station where he had parked his motorcycle, mounted it and proceeded south on 8th Street. His purpose was to return to his employment on the south side of the Boise River where he was due at 1:00 o'clock. The service station being on the east side of 8th, he crossed the sidewalk and entered 8th on a way for vehicles entering and leaving the station, and about forty feet north of Broad Street. Proceeding south on the west side of 8th Street, he accelerated his speed, but said he did not exceed twenty-five to thirty miles per hour. As he approached the Myrtle Street intersection, and at a point about forty feet from the north curb line thereof, he first saw defendants' truck entering the intersection and about a distance of four to six feet within the intersection. Observing that the truck would block his path, and allowing for reaction time, he said he applied his brake about fifteen feet north of the north curb line of Myrtle Street, and that thereafter he intermittently applied and released the brake and swerved to his right; that when he reached a point in the intersection and near the west curb of 8th Street he had reduced his speed to ten miles per hour, and there released his brake entirely, because there was danger the machine would skid from under him and it was necessary to do so in order to straighten it up. At that point he observed the truck nearby on his left; that he then accelerated his speed, entering 8th Street south of the intersection at a point six feet out, or east, from the curb line, and, then, as follows:

'Q. What happened as you got to this point? A. I could see that the truck was somewhere in this neighborhood in there, and he was continuing on his course, but I recall I thought for a moment there that he would slow down and maybe give me a chance to go on around, and that is the reason for a brief spurt when I turned on the motorcycle fuel to accelerate it more.

'Q. How brief a spurt was it? A. Just a moment of time.

'Q. What did you do then? A. Then as the truck began to continue on in his course, not giving me any acknowledgment whatsoever, he kept crowding me over into this part of the pavement in here (pointing) and then I began to apply the brakes again.

'Q. Why did you apply the brakes again? A. Because I could see that there was a car parked down in here that I might come in contact with.'

There were no cars parked in the parallel parking area on the west side of 8th Street, south of the Myrtle Street intersection, for some distance to the south, the first parked car in that area being opposite the point of impact. The rear end of the car so parked was approximately eighty feet south of the south curb line of Myrtle Street. He had increased his speed up to a rate between 15 and 20 miles per hour. Upon seeing that he might not be able to pass the truck before reaching that car, plaintiff again applied his brake, and traveled south in the unoccupied parking area into which he said he was crowded by the truck. He had slowed down to five miles an hour when he collided in a glancing manner with the left rear fender of the parked car, and skidded into and under the truck on the right side thereof, as the truck was passing the parked car. A photograph (plaintiff's exhibit 8) of skid marks made by the motorcycle when the brake was applied the second time, shows that the vehicle entered 8th south of the intersection, a little farther out from the curb than the parking area extends, and then entered the parking area on a slant as it proceeded south. This tends to refute plaintiff's testimony that Smith made a sweeping turn and crowded him into the parking area.

Eighth Street is fifty feet wide. The parked car was 5'10"' wide and standing with its right wheels 18"' from the curb; the truck bed was 8' wide and traveling at a distance of 3' west from the center line, it would occupy 11' on the west half of the street. That would leave 6'8"' between the passing truck and the parked car. Following the collision, the rear, dual wheels of the truck skidded the motorcycle along the pavement, where it came to a stop 20 to 22 feet south of the point of impact. These skid marks made by the motorcycle commenced at a point in line with the front edge of the front wheels of the parked car, and fourteen feet out from the west curb line of 8th Street.

Plaintiff's witness, Obenchain, testified he was sitting in a parked car on 8th, about midway between Broad and Myrtle Streets; that he observed the motorcycle coming down 8th Street and as it approached Myrtle Street, he saw the truck in the intersection 'just about as his front wheels crossed the yellow line'. Asked, 'Approximately how much of his turn had he completed when you first noticed the truck?' he answered, 'Well, he was just about a 45 degree angle.' At that time the cyclist was approximately a car length from the north line of the intersection; that he applied his brakes at that point; that he skided some distance and appeared to turn into Myrtle Street, then released his brakes, then skidded again. Afterward the witness saw skid marks which commenced approximately fifteen feet north of the intersection and at that point he saw red glass upon the pavement, which he thought was reflector or light glass which had fallen from the motorcycle when the brakes were applied.

Plaintiff's witness, Herndon, office manager of the Peasley Transfer & Storage Company, which occupied the building on the northwest corner of the intersection, testified that 8th Street was generally heavily traveled; that he heard brakes squeal looked up and observed the motorcycle; that its brakes were applied just north of the intersection; that he followed its course and in doing so saw the truck proceeding south on 8th Street; that the motorcycle and the truck traveled south parallel to each other; that the brakes were applied at two different intervals, first, when his attention was attracted by their squealing, and after being released they were applied again.

Plaintiff's witness, Gilmore, a police officer, who arrived on the scene shortly...