Nagel v. Hammond

Decision Date07 December 1965
Docket NumberNo. 9616,9616
PartiesClarence E. NAGEL, Plaintff-Respondent, v. Marion HAMMOND and Marion Hammond, Guardian ad litem for Jack Hammond, a minor, Defendants-Appellants. Marion HAMMOND and Marion Hammond, Guardian ad litem for Jack Hammond, a minor, Cross-Plaintiffs and Counter-Defendants-Appellants, v. Clarence E. NAGEL and Swift and Company, Cross-Defendants and Counter-Claimants-Respondents.
CourtIdaho Supreme Court

Elam, Burke, Jeppesen & Evans, Boise, for appellants.

Smith & Miller, Caldwell, Hawley, Troxell, Ennis & Hawley, Boise, for respondents.

KNUDSON, Justice.

The damages sought by plaintiff-respondent, Clarence E. Nagel, resulted from a collision which occurred at the intersection of 4th and Blaine Streets, in Caldwell, Idaho, at about 2:30 p. m. on July 11, 1963. The plaintiff was at that time an employee of counterclaimant, Swift and Company, and was driving his employer's truck south on 4th Street when it collided with an automobile being driven by defendant, Jack Hammond, who was driving east on Blaine Street. Visibility was good. Except for a house located approximately 56 feet back from the intersection on plaintiff's right there was nothing to obstruct the respective drivers' view of each other as they approached the intersection. A verdict was returned in favor of plaintiff for $15,935.00 and in favor of Swift and Company in the sum of $1,722.00. Judgment upon the verdict was thereafter entered. This appeal is from said judgment and an order denying defendant's motion for a new trial.

Defendants contend that the trial court improperly instructed the jury by giving the following quoted instruction:

'No. 21.

'If you should find that the defendant approached the intersection at an unlawful or dangerous rate of speed or failed to drive at an appropriate reduced speed when approaching the intersection, the defendant did thereupon forfeit the right of way which he might otherwise have had by virtue of his being on the right of the plaintiff.'

It is defendants' contention that this instruction carries an implication that the right of way passed to the plaintiff and absolved him from any duty to look for approaching automobiles. It is not pointed out by defendants just what language in the instruction would, when read by a person of ordinary understanding, leave such implication. This court has repeatedly stated that words and phrases of a statute must be given their usual, plain and ordinary meaning. I.C. § 73-113. Words that are in common use among the people should be given the same meaning in a statute as they have among the great mass of people who are expected to read, obey and uphold them. City of Lewiston v. Mathewson, 78 Idaho 347, 303 P.2d 680; Striebeck v. Employment Security Agency, 83 Idaho 531, 366 P.2d 589. The word 'forfeit' is in common usage and its popular and accepted meaning is 'to lose' or 'to lose the right to.' It would be applying a strange and unusual construction on the word to say that it means or implies a transfer.

Preceding the giving of this instruction the court gave the following quoted instruction No. 17, to-wit:

'Section 49-727 of the Idaho Code provides as follows:

"(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.'

"(b) When two vehicles enter an intersection from different highways at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. * * *'

'You are instructed that two vehicles are to be considered as entering an intersection at approximately the same time when they approach so nearly at the same time that there would be imminent hazard of a collision if both continued the same course at the same speed.'

Most of said instruction No. 17 is quoted from I.C. § 49-727 and is stated in plain and unambiguous language which laymen are readily able to comprehend. In Mendenhall v. MacGregor Triangle Company, 83 Idaho 145, 358 P.2d 860, this court had under consideration an instruction which contained only subsections (a) and (b) of I.C. § 49-727 without any explanatory language, and we held that 'the giving of this instruction was proper in explaining the statutory duty of drivers approaching an intersection.' The explanatory language contained in instruction No. 17 regarding the phrase 'at approximately the same time' correctly states the law. Coughran v. Hickox, 82 Idaho 18, 348 P.2d 724. In keeping with uniform practice this jury was instructed to consider the instructions as a whole and we do not agree that the giving of instruction No. 21, under the circumstances of this case, was in any respect prejudicial to defendants.

Defendants contend that the court erred in denying their motion for an involuntary dismissal based upon plaintiff's failure to prove that defendant Jack Hammond was negligent or that such negligence was the proximate cause of the collision and also that plaintiff's testimony showed that he was guilty of contributory negligence as a matter of law.

We do not agree with the contention that plaintiff failed to introduce evidence of defendant Jack Hammond's negligence. It was stipulated that on the day this accident occurred the speed limit at the intersection involved, as fixed by the City of Caldwell, was 20 miles per hour. Plaintiff's testimony that he entered the uncontrolled intersection at a speed of between 5 and 15 miles per hour is unchallenged. The investigating officer testified that defendant Hammond stated to him that he, defendant, was driving at about 25 or 30 miles per hour when entering the intersection. Plaintiff's proof shows that the collision occurred just south of the center of the intersection; that the panel truck had been struck at about the middle of its right side, which was completely bent in, including the frame and doors; there were dents on the top and all the way around the vehicle and all glass broken out. The truck landed on its left side against the curb at the southeast corner of the intersection. Such evidence is sufficient to establish negligence on the part of the defendant. failure to see defendant's automobile approaching plaintiff's testimony showed that he was guilty of contributory negligence as a matter of law, it is argued that plaintiff's failure to see defendant's automobile approachint the intersection established such negligence. Plaintiff testified that he did not see defendant's car although he looked to his right and left upon entering the intersection and he did not recall that anything obstructed his view.

Although defendant stated that he has no recollection of facts after he reached the middle of the block between 3rd and 4th Streets, he now contends that plaintiff should have seen him and yielded the right of way. Just where defendant was at the time plaintiff entered the intersection was not established by anyone. This is one of the facts which must be determined by the trier of fact.

Under the facts of this case plaintiff cannot be adjudged guilty of contributory negligence merely because he did not see defendant when he entered the intersection. Plaintiff's conduct is to be determined by its conformity to or departure from what an ordinarily prudent person would have done under all the circumstances and conditions then existing.

In Stowers v. Union Pac. R. Co., 72 Idaho 87, 237 P.2d 1041, this court stated that:

'Through a long and unbroken line of decisions this court has held that where the evidence on material facts is conflicting, or where on undisputed facts reasonable and fairminded men may differ as...

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26 cases
  • Alegria v. Payonk
    • United States
    • Idaho Supreme Court
    • September 26, 1980
    ...measured against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. Nagel v. Hammond, 90 Idaho 96, 408 P.2d 468 (1965). We perceive no justification for excusing the licensed vendor of intoxicants from the above general duty which each pers......
  • Vannoy v. Uniroyal Tire Co.
    • United States
    • Idaho Supreme Court
    • November 22, 1985
    ...Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980); Messmer v. Ker, 96 Idaho 75, 79, 524 P.2d 536, 540 (1974); Nagel v. Hammond, 90 Idaho 96, 102, 408 P.2d 468, 472 (1965). All of these cases state that the actions complained of are to be compared to the ordinarily prudent person's action......
  • Brooks v. Logan
    • United States
    • Idaho Supreme Court
    • August 30, 1995
    ...the circumstances and conditions then existing. Alegria v. Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980) (citing Nagel v. Hammond, 90 Idaho 96, 408 P.2d 468 (1965)). What circumstances and conditions existed is a factual question to be determined by the trier of fact. Toner v. Lederl......
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    • United States
    • Idaho Supreme Court
    • May 20, 1975
    ...and circumstances of the case in only one way. Anderson v. Blackfoot Livestock Co., 85 Idaho 64, 375 P.2d 704 (1962); Nagel v. Hammond, 90 Idaho 96, 408 P.2d 468 (1965); Johnson v. Stanger, In this case the question of proximate cause was a question of fact, and from the record it appears t......
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