Meyer v. Brown
| Decision Date | 22 December 1966 |
| Docket Number | No. 9683,9683 |
| Citation | 91 Idaho 369,421 P.2d 740 |
| Parties | Monte Wayne MEYER by Ann Meyer, his Guardian Ad Litem, Plaintiff-Appellant, v. Thomas J. BROWN and Jerry Mayberry, Defendants-Respondents. |
| Court | Idaho Supreme Court |
Gigray, Boyd & Downen, Caldwell, for appellants.
Elam, Burke, Jeppesen & Evans, Boise, for respondent.
October 17, 1961, between 9:30 and 10:00 a. m., plaintiff (appellant) Monte Meyer, a fourteen-year-old boy, was riding as a passenger in an automobile owned and driven by his father. Plaintiff's mother, Ann Meyer (guardian ad litem) was also a passenger in the automobile. The father and mother were parties to an action pending in the district court in Caldwell, and were on their way to attend the trial, set to commence at 10:00 a. m. They wanted to visit with their attorney before court convened and were in a hurry.
They were proceeding east on the Parma-Caldwell highway, also known as U.S. Highway 20-26. The paved portion of the highway was 42 feet wide, with wide graveled shoulders and had an intermittent white line painted along the center. On the south side of, and parallel with, the highway was located a beet dump which extended west to east approximately 1000 feet. The entrance to the dump was on the west end of the beet dump area. As the Meyer car approached the area of the beet dump it came up behind a station wagon being driven by Nola Yekel, a neighbor of the Meyers, accompanied by one Lydia Jurries as a passenger. The Yekel car and the Meyer car had just passed a beet truck which had turned into the beet dump entrance. Ahead of the Yekel car was an empty beet truck owned by defendant (respondent) Brown and driven by defendant (respondent) Mayberry. Mrs. Yekel had intended to pass the Brown beet truck; but when she observed its left rear signal light blinking she slowed the speed of her automobile and proceeded to follow the slow-moving beet truck. About 1056 feet east from the entrance to the beet dump, and in the direction in which the vehicles were traveling, was a lane leading from the north side of the highway north to the Earl Ross farm; and 50 feet farther east was another lane leading north from the highway. These lanes were connected to the traveled portion of the highway by a grade, crossing the borrow pit on the north of the highway.
The driver of the beet truck was intending to turn left across the north side of the highway to enter the lane leading to the Earl Ross farm. Meyer had been traveling at a speed variously estimated at from 70 to 90 miles per hour. When he came up behind the Yekel car he turned to the left onto the north side of the highway to pass, and had about passed the Yekel car when he observed that the truck had started to make its left-hand turn in front of him. He then applied his brakes. The braking action pulled the car to the left, as it proceeded diagonally across the north lane and into the borrow pit. The car left 118 feet of skid marks on the pavement. It catapulted over the grade leading to the Ross lane and crashed rear end first into the embankment or grade of the second lane, a distance of 114 feet from where it left the pavement.
Plaintiff and his mother were thrown from the car and plaintiff was found pinned under the left front wheel. The squealing from the skidding tires attracted the attention of workmen at the beet dump, who came over and assisted in lifting the car off the plaintiff, while his mother and another dragged him from beneath it. Although there was some conflict in the testimony, the weight of the evidence is that defendant's truck had not passed over the center line of the highway and that the north side or westbound lane was unoccupied at the time of the accident.
This action was brought by plaintiff, through his mother as guardian ad litem, to recover damages for the injuries he suffered as a result of the accident. He alleged negligence on the part of Mayberry, the driver of the truck, in attempting to make a left turn across the highway without first observing whether such move could be made safely.
The cause was tried to a jury. After the jury had been instructed and had been in deliberation for some time, the jurors returned into the courtroom and, in the presence of the clerk, court reporter, the parties and their attorneys, the following occurred:
Thereafter, following further deliberation, the jury returned its verdict in favor of the defendants; and judgment was entered thereon for the defendants and against the plaintiff.
Plaintiff's subsequent motion for a new trial was denied and plaintiff brought this appeal from the judgment and from the order denying his motion for a new trial. The errors assigned as grounds for the new trial are also assigned as errors on this appeal from the judgment.
Instruction No. 29 is as follows:
'If you find from your consideration of all the evidence that the defendant was negligent in one of the ways which I have mentioned, as charged by the plaintiff, and that his negligence was a proximate cause of injury to the plaintiff and you further find that the acts of a third person also was a proximate cause of injury to the plaintiff, then the acts of the third party are not a defense to the defendant against the claim of the plaintiff unless you find that the proximate cause of injury to the plaintiff was in fact the negligence of the third party and that negligence of the defendant did not proximately cause or contribute to cause the injury of the plaintiff.
'Before some other proximate cause will relieve a negligent party whose negligence is a proximate cause of an accident it must be an efficient intervening cause, a new and independent force which breaks the causal connection between the original wrong and the injury.'
Plaintiff contends the instruction was erroneous in that it was ambiguous and confusing and particularly that it did not inform the jury as to whom might be considered a third party within the meaning of the instruction, and that it instructed the jury upon the law of intervening cause, which was inapplicable because no intervening cause appeared from the evidence.
Plaintiff also assigns as error the oral instruction given to the jurors when they returned to the courtroom, as hereinabove set out. Plaintiff contends such instruction was erroneous on the grounds; first, that it was oral, and second, that it was an erroneous statement of law.
However, the oral instruction effectively removed the uncertainty from the minds of the jurors as to whom they might consider as a negligent third party, thus remedying the defect complained of in instruction No. 29. Plaintiff's contention that there was no intervening proximate cause revealed by the evidence is not well taken. Assuming there was negligence on the part of the driver of the truck, it is obvious from the facts that Milton Meyer, the driver of the automobile, could be found negligent also. The jury justifiably may have found that the speed at which he undertook to pass the Yekel car and the truck, without first determining whether such passing could be safely undertaken, was negligent. Such negligence on the part of Meyer was independent of any negligence on the part of Mayberry. The two were not acting in concert. The jury could have considered such negligence on the part of Meyer as an efficient intervening cause, which constituted the proximate cause of the collision. Such finding by the...
To continue reading
Request your trial