McKinley v. Wagner

• Citation: 67 Idaho 104,170 P.2d 796
• Decision Date: 28 June 1946
• Docket Number: 7271
• Parties: McKINLEY et ux. v. WAGNER
• Court: Idaho Supreme Court

170 P.2d 796

67 Idaho 104

McKINLEY et ux. v. WAGNER

No. 7271

Supreme Court of Idaho

June 28, 1946

Appeal from District Court, Tenth Judicial District, Nez Perce County; A. L. Morgan, Presiding Judge.

Reversed, and remanded with directions.

Cox Ware & Stellmon, of Lewiston, for appellant.

Under the doctrine of last clear chance, any person who has the last clear chance or opportunity to avoid an accident notwithstanding the negligence of his opponent, is considered in law solely responsible for such accident. Pilmer v Boise Traction Co., Ltd., 1908, 14 Idaho 327, 328, 344, 347, 94 P. 432, 15 L.R.A.,N.S., 254, 125 Am.St.Rep. 161.

The doctrine of last clear chance, in order to be available, must be pleaded, and where it is not pleaded, it is not in issue. Adkin v. Zalasky, 1938, 59 Idaho 292, 301, 81 P.2d 1090; Ball v. Youngblood, Tex.Civ.App., 1923, 252 S.W. 872; Correnti v. Catino, 1932, 115 Conn. 213, 160 A. 892, 893; Bragdon v. Hexter, 1929, 86 Colo. 435, 282 P. 568.

In order for the last clear chance doctrine to be applicable, the motorist against whom it is sought to be applied must have an opportunity to avoid the injury. There must be an appreciable interval of time, and when the movement of the individual or the vehicle he is driving is so sudden that there is no appreciable interval of time within which the other party will have an opportunity to avoid the accident, the doctrine of last clear chance can have no application.

Likewise, where the parties are equally guilty of concurring acts of negligence and the negligence of both contributes to the accident at the time of its occurrence, the doctrine of last clear chance does not apply. 5-6 Huddy Encyclopedia of Automobile Law, p. 209, Sec. 125, p. 211, Sec. 126; Young v. Southern Pac. Co., 1922, 189 Cal. 746, 210 P. 259, 263; Aiken v. Metcalf, 1917, 92 Vt. 57, 102 A. 330; Shanley v. Hadfield, 1923, 124 Wash. 192, 213 P. 932, 934; Hartley v. Lasater, 1917, 96 Wash. 407, 165 P. 106; Germon v. Noe, 1942, 129 Conn. 333, 27 A.2d 378, 379; Correnti v. Catino, 1932, 115 Conn. 213, 160 A. 892, 896.

It is the duty of the trial court to confine its instructions to a statement of such principles of law as were applicable to the evidence admitted in support of and within the issues made by the pleadings. Nordquist v. W. A. Simmons Co. 1933, 54 Idaho 21, 28 P.2d 207; Asumendia v. Ferguson, 1937, 57 Idaho 450, 65 P.2d 713; McIntire v. Oregon Short Line R. Co., 1936, 56 Idaho 392, 398, 55 P.2d 148; Owen v. Taylor, 1941, 62 Idaho 408, 416, 114 P.2d 258.

J. H. Felton, of Moscow, and John L. Phillips, of Lewiston, for respondents.

Recovery under last clear chance doctrine is authorized under pleadings in this case. The doctrine need not be specially pleaded. Hooker v. Schuler, 45 Idaho 83, 260 P. 1027; Short v. Boise Valley Traction Co., 38 Idaho 593, 225 P. 398; Mosso v. E. H. Stanton, 75 Wash. 220, 134 P. 941, L.R.A.1916A, 943; Crowley v. Burlington, etc., R. R. Co., 65 Iowa 658, 20 N.W. 467, 22 N.W.2d 918; Champion v. Eakle, 79 Colo. 320, 246 P. 280, 47 A.L.R. 289.

The instructions in a case must be considered together and taken as a whole. Stallinger v. Johnson, 65 Idaho 101, 139 P.2d 460; Hard v. Spokane International Ry. Co., 41 Idaho 285, 238 P. 891. Bryant v. Hill, 45 Idaho 662, 264 P. 869.

Holden, Justice. Ailshie, C. J., and Budge, Givens and Miller, JJ., concur.

OPINION

Holden, Justice.

The automobile accident out of which this controversy arose occurred about five o'clock in the afternoon of December 14, 1943, on Highway 95, known as the North and South Highway, between Culdesac and Sweetwater, Nez Perce County, Idaho. The highway at the point of collision between a truck owned by appellant, driven by Joseph Bridges, and a Plymouth sedan owned by respondents, driven by William McKinley, runs straight in an easterly-westerly direction for a quarter of a mile west of the point of collision and for a half mile east of the point of collision. It was plainly marked with a center line, the surface was dry, it was daylight and the view was unobstructed at the time of the collision. Thereafter, November 21, 1944, plaintiffs and respondents, William McKinley and Emma McKinley commenced this action to recover damages for personal injuries as well as for damages to the car, owned by the McKinleys and driven by William McKinley. Defendant and appellant Wagner answered the complaint for damages filed by the McKinleys and by cross complaint sought to recover damages from them. The cause was tried April 18, 1945. April 20, 1945, the jury returned a verdict in favor of plaintiffs and respondents for the sum of $ 2,912.30, upon which a judgment was entered thereon in favor of respondents and against appellant. The appeal to this court is from the judgment.

Appellant says, "This case presents four main questions:

"1. The insufficiency of the evidence to sustain the verdict and judgment for the respondents and that the same are against the law and against the evidence.

"2. The error on the part of the court in giving an instruction on last clear chance.

"3. The error of the court in refusing to permit the appellant to cross-examine respondents' doctor.

"4. That the damages awarded for the personal injuries to the respondents were excessive."

In support of the first contention that the evidence is insufficient to sustain the verdict and judgment, appellant insists "we have a situation where a driver accompanied by his wife, is proceeding down a highway on an unobstructed road, followed by a truck" and that as respondent William McKinley approached "a point opposite a closed gate on the highway leading to his premises, he slows down his car. He gives no signal of any kind, except that he states that he did open his left-hand door and blink his lights. He turns straight across the highway to make a left-hand turn into a private driveway." And, further, that "The driver of the truck, seeing the car ahead of him (the McKinley car) slow down without giving any signal, sounds his horn and pulls over to the left to pass the (McKinley) automobile. As he does so, the automobile suddenly makes a left-hand turn straight across the truck's path, and the inevitable collision ensues." Appellant further insists that "under this state of facts, the question before the court is whether or not the evidence is sufficient to sustain a verdict and judgment in favor of the driver of the automobile and his wife for the personal injuries to themselves and for the damages to their car." And also that "The driver of appellant's truck, while he must keep a sharp lookout for others who may be using the highway, is not required to anticipate that the driver of an automobile will unlawfully turn to the left in front of him without any warning." (Emphasis added.)

Respondent William McKinley testified on direct examination that when he got within "about a hundred and fifty feet from my turn-in, I opened the door and stuck my arm out," and also that his speed was "very slow." He further testified in substance, that before making the "turn-in" he looked "in the rear view mirror" and "seen nothing," and that he did not "hear any horn." On cross-examination, he testified, in substance, that before making the left-hand turn he opened the car door "and held it out like that (indicating)"; that he opened the door by pressing down on the handle; that he held the door open by holding the handle; that he "blinked" his lights; that he held the door open until he got across the yellow line; that he opened the door "a little better than a hundred feet" from where he "went to turn in"; that he didn't think he "was going ten miles an hour" when he made the turn; that he first noticed the truck "just as the car door closed"; that when he first saw the truck it was awfully close, about three or four feet; that he was over the yellow line.

The statute, Sec. 48-517, I.C.A., as amended 1939 Sess.L., p. 182, c. 108, § 4, provides:

"(e) All signals herein required given by hand and arm shall be given from the left side of the vehicle in the following manner and such signals shall indicate as follows:

"1. Left turn. -- Hand and arm extended horizontally.

"2. * * *

"3. * * *."

The vital question, then is: Just what signal did respondent William McKinley give immediately before starting to make the left hand turn in question? It will be noticed it cannot be determined from his own testimony, whether he extended his left hand and arm horizontally in the manner required by statute, or how or in what manner he "stuck" his left arm out, or whether instead of extending his left hand and arm he opened the left hand car door and "blinked" his lights, or whether he both "stuck" his left arm out and opened the left hand car door.

This uncertainty on a pivotal question of fact makes it necessary to order a new trial. And that, in turn, also makes it necessary to pass on appellant's third assignment of error and the contention "the doctrine of the last clear chance is not applicable to this case because it is not pleaded."

Appellant's third assignment of error is to the effect that the trial court erred in giving instruction No. 12 on the doctrine of last clear chance. By instruction No. 12, the court instructed the jury as follows:

"If you find from all of the facts and circumstances in this case that the plaintiff William McKinley was negligent in attempting to turn across said highway in front of said approaching truck and thereby negligently placed himself in a position of danger from which he was unable to extricate himself, but further find from a preponderance of the evidence that such danger to the said automobile of plaintiffs and the plaintiffs was known to the operator of the truck in time...