McKee v. Chase

• Decision Date: 20 February 1953
• Docket Number: No. 7864,7864
• Citation: 73 Idaho 491,253 P.2d 787
• Parties: McKEE et al. v. CHASE et al. (two cases).
• Court: Idaho Supreme Court

Page 787

253 P.2d 787

73 Idaho 491

McKEE et al. v. CHASE et al. (two cases).

No. 7864.

Supreme Court of Idaho.

Feb. 20, 1953.

Anderson & Kaufman, Boise, for appellants.

Ralph R. Breshears and Elam & Burke, Boise, for respondents.

TAYLOR, Justice.

On Saturday evening, September 23, 1950, the plaintiff (appellant) Joe McKee was driving north on Cloverdale Road in a 1937 Plymouth coupe, owned by his brother, plaintiff (appellant) Welby McKee. At the same time the defendant (respondent) Chase was driving south along the same road in an International KB5 truck owned by defendant (respondent) Teeter. Chase at the time was an employee of Teeter.

A collision occurred between these two vehicles in which Joe McKee lost his left arm, which had been resting on the window sill of the left door of the coupe, and the coupe itself was badly damaged.

The action brought by Joe McKee for personal injury, and the action brought by Welby McKee for damage to his automobile, were consolidated and tried to a jury and vedicts returned for the plaintiffs in each case March 30, 1951. Thereafter, motions for a new trial were granted and the cases were again consolidated and tried November 19th and 20th, 1951. Upon this trial when plaintiffs had offered their evidence and rested, the court granted defendants' motions for judgments of nonsuit. These appeals are from the judgments entered thereon.

The assignments of error raise the sufficiency of plaintiffs' evidence to require the submission of the causes to the jury, and the rulings of the court in excluding certain testimony and exhibits offered. A nonsuit is justified only where there is an entire absence of substantial evidence tending to establish plaintiffs' case. Nissula v. Southern Idaho Timber P. Ass'n, 73 Idaho ----, 245 P.2d 400. In this case both drivers claim the other was driving in the center of the road. The plaintiff, Joe McKee, testified that he had just passed two other vehicles for which he had dimmed his lights and that upon raising his lights after passing the second one, he observed the truck about 75 or 100 feet away in the center of the road and angling toward his side thereof; that the truck was without lights; that he immediately swerved to the right to the extent that his right-hand wheels were off the paved surface and on the gravelled shoulder of the road, when the collision occurred. The evidence further tends to show that the left front corner of the bed of the truck first made contact along the left-hand door of the coupe and gouged into the body of the coupe just back of that door, and that the left front fender and wheel of the coupe were smashed by the left dual wheels of the truck.

Thus, there is substantial evidence which, if believed by the jury, would tend to show that the driver of the truck was driving in the center of the road, or with the left side of the truck beyond the center line, and that in so doing he acted negligently, and that such negligence was the proximate cause of the collision and damage.

Countering this, respondents call attention to the testimony on cross-examination of one of plaintiffs' witnesses, Yerrington (who was at the time of the collision in partnership with defendant Teeter). He testified that shortly after the collision and with the aid of a flashlight he traced the tracks made by the right-hand dual tires of the truck back along the west shoulder of the road a distance of 150 feet, which would place the truck partially off the oiled surface on its own side of the road at the point where the collision occurred. They also point to the testimony of several of the witnesses, which places the debris resulting from the impact near the center of the road, but on the west side of the center line, and other testimony tending to establish that the headlights and clearance lights of the truck were lighted.

Such testimony merely creates a conflict in the evidence, to be resolved by the jury. The rule in this state has been long established that where there is such a conflict, or where the evidence is such that reasonable minds might reach different conclusions, the question becomes one for the jury and a nonsuit should not be granted. Burt v. Blackfoot Motor Supply Co., 67 Idaho 548, 186 P.2d 498; Stowers v. Union Pac. R. Co., 72 Idaho 87, 237 P.2d 1041; Jackman v. Hamersley, 72 Idaho 301, 240 P.2d 829; Hayward v. Yost, 72 Idaho 415, 242 P.2d 971. Moreover, this court has held that in testing the sufficiency of the evidence on a motion for a nonsuit, that version of the evidence most favorable to the plaintiff must be accepted. Finlayson v. Waller, 64 Idaho 618, 134 P.2d 1069; Hill v. Bice, 65 Idaho 167, 139 P.2d 1010.

Applied here, this would mean that the trial court was required to act upon the assumption that the jury might resolve these conflicts in favor of the plaintiffs. That is, the jury might reject the testimony of Yerrington and accept that of the plaintiff as to where the truck was at the point of impact, unless other established facts rendered plaintiff's testimony so inherently improbable as to be unworthy of belief. It does not appear that the location of the debris would have that effect.

Respondents also contend that plaintiffs' evidence establishes contributory negligence on the part of Joe McKee, justifying the nonsuits. First that he was driving with his lights on dim and insufficient to render clearly discernible objects 200 feet ahead in violation of §§ 49-548, 49-550, I.C. The evidence is not conclusive as to whether appellant's lights were such as to violate the law. Hence, that was for the jury to determine. Granting that a violation of such statutes is prima facie negligence, whether it was negligence under the circumstances here shown, and, if so, whether it was the proximate cause, or a contributing proximate cause, of the injury, were questions for the jury. Brixey v. Craig, 49 Idaho 319, 288 P. 152; Dawson v. Salt Lake Hardware Co., 64 Idaho 666, 136 P.2d 733; Pittman v. Sather, 68 Idaho 29, 188 P.2d 600; Skamenca v. Reeser, 294 Ill.App. 216, 13 N.E.2d 668; Wise v. Kuehne Mfg. Co., 322 Ill.App. 26, 53 N.E.2d 711; Toth v. Perry, 120 Conn. 680, 182 A. 464; 113 A.L.R. 1263 note; 21 A.L.R.2d 21 note.

Second, respondents contend that Joe McKee admittedly driving with his left arm on the window sill was guilty of such negligence as to bar recovery by him. This was also a question for the jury. Petroleum Carrier Corp. v. Snyder, 5 Cir., 161 F.2d 323; Brenton v. Colbert, 305 Pa. 277, 157 A. 619; Cutrer v. Jones, La.App., 9 So.2d 859; Hobbs-Western Co. v. Carmical, 192 Ark. 59, 91 S.W.2d 605; Edwards v. Woods, 342 Mo. 1097, 119 S.W.2d 359; Bowling v. Poe, 286 Ky. 267, 150 S.W.2d 897; Baker v. Boone, 206 Ark. 823, 177 S.W.2d 756.

In view of the fact that the cases must be again tried, we will discuss the rulings of the trial court excluding evidence offered by the plaintiffs. § 1-205, I.C. One such ruling appears in the direct examination of the witness Yerrington as follows:

'Q. Did you observe any marks in the road that night, Mr. Yerrington, in the vicinity of the automobile----

'Mr. Breshears: Object to this unless something more definite is asked. What kind of marks or something that could be connected with the accident. I don't believe that question is competent, relevant or material.

'The Court: Objection sustained.'

The question was later put in various forms, as follows:

'Did you observe any scars on the highway, freshly made scars on the highway in the vicinity of this accident the night you were there, Mr. Yerrington?'

'Did you observe any scars on the highway between the car and the truck that night, Mr. Yerrington?'

'Did you observe that night while you were there and examined that road, Mr. Yerrington, between the automobile as it sat in the fence, and the truck as it was parked approximately 250 feet south, any gouge marks or scars in that asphalt highway?'

'Did you observe at that time, Mr. Yerrington, any scars on the road in the vicinity of the debris?'

Objections were sustained to these questions on grounds variously stated, that they called for the conclusion of the witness; surmise and conjecture as to whether the scars or marks were connected with the accident; that they were too general; and without proper foundation. The questions were proper and it was error to sustain the objections thereto. They were preliminary questions necessarily general in nature and tending to lay the foundation for a more detailed and particular location and description of the marks or scars. After such marks have been located with reference to the collision, and particularly described by the witnesses, it is for the jury to say, in the light of all the evidence, whether they were made by the vehicles involved; whether they were connected with the accident; and what conclusions, if any, are to be drawn from them in determining the issues. Thornbury v. Maley, 242 Iowa 70, 45 N.W.2d 576; Danner v. Walters, 154 Neb. 506, 48 N.W.2d 635; Abbott v. Hayes, 92 N.H. 126, 26 A.2d 842.

Other similar rulings upon similar objections appear throughout the transcript covering the examination of other witnesses for the plaintiff as to tire marks, gouge marks, and bloodstains, observed by them. These were likewise erroneous.

Objections were made to testimony of witnesses who observed such marks on Sunday, the day following the accident; on Monday, the 25th; and on Wednesday, the 27th of September (the latter being the fourth day after the accident) that such evidence was too remote. We recognize that the trial court must necessarily exercise discretion and limit the testimony to such a period of time as will reasonably remove the evidence from the field of conjecture. As to marks left by vehicles involved in a collision, the period of time between the making of the marks and their observation by the witness, beyond which testimony describing them would be conjectural, obviously depends largely...