Nichols v. Sonneman

• Decision Date: 30 September 1966
• Docket Number: No. 9701,9701
• Citation: 418 P.2d 562,91 Idaho 199
• Parties: Ronald J. NICHOLS and Nelma Nichols, his wife, Plaintiffs-Respondents, v. Robert G. SONNEMAN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 562

418 P.2d 562

91 Idaho 199

Ronald J. NICHOLS and Nelma Nichols, his wife, Plaintiffs-Respondents, v. Robert G. SONNEMAN, Defendant-Appellant.

No. 9701

Supreme Court of Idaho.

Sept. 30, 1966.

Ferebauer & Barnard, Idaho Falls, for appellant.

Petersen, Moss & Olsen, Idaho Falls, James A. McIntosh, Salt Lake City, Utah, for respondents.

TAYLOR, Justice.

On the evening of December 7, 1963, plaintiff Nichols (respondent), in his capacity as a policeman for the city of Idaho Falls, was engaged in the investigation of an automobile accident which had occurred at the intersection of Yellowstone avenue and 17th street in Idaho Falls. While so engaged he was struck and injured by an automobile driven by defendant (appellant). Nichols and his wife brought this action to recover damages for the injuries sustained, alleging negligence on the part of defendant. Defendant denied negligence and alleged that the injuries arose out of negligence on the part of plaintiff. Trial resulted in verdict and judgment in favor of plaintiffs, from which defendant prosecuted this appeal.

Yellowstone avenue runs approximately north and south adjacent to and on the west side of the Union Pacific Railroad right of way. At the point involved the railroad tracks are located on an elevated embankment. Seventeenth street enters Yellowstone avenue from the east and passes through the embankment beneath the railroad tracks.

Plaintiffs' exhibit 7 is a picture of the scene where the accident occurred:

A stop sign was located a few feet west of the underpass abutment. This sign, facing east, required westbound traffic on 17th street to stop before entering Yellowstone avenue. Officer Nichols, assisted by one of the participants in the prior accident, was engaged in making measurements at the scene. At that time defendant, driving his car, entered Yellowstone avenue from the east on 17th street, turning north on the avenue. Office Nichols was in the traffic lane, about six feet from its edge, and was just rising from a kneeling or squatting position, with his back toward the underpass, when defendant's car struck him. Defendant Sonneman was the owner and operator of a bar in Idaho Falls. At about the time Nichols began his investigation at the intersection, defendant drove past the scene. He drove south on Yellowstone avenue and east through the underpass on 17th street to the liquor store located immediately east of the underpass. There he purchased liquor for his bar, and then proceeded west on 17th street and was turning north on Yellowstone avenue when the accident occurred. He testified that when he passed the scene on the way to the liquor store, he observed the officer's car and the two vehicles, which had been involved in the prior accident, parked off the cast side of the avenue near the underpass; that on his return he stopped at the stop sign on the west side of the underpass; that he looked to the right and to the left; that he then put his car in motion and looked straight ahead while making the right-hand turn toward the north on Yellowstone avenue; that he did not see officer Nichols and was unaware of his presence until after the impact; that 'a light thud hit the side of my car, right side'; that he stopped the car immediately and got out.

Nichols testified that the revolving blinker light on the top of his patrol car was not in operation at the time of the accident; that he was provided with a flashlight, and a fluorescent jacket to be worn over his uniform, but that he was not using the flashlight nor wearing the jacket while making the investigation at the time of the accident.

Plaintiffs' complaint contained three counts. The first count alleged damage for the personal injuries to Mr. Nichols in the sum of $1,305.70 for medical and hospital bills and loss of wages, and general damages for pain, suffering, inconvenience, and permanent disability in the sum of $30,000.000. The second count alleged that defendant's conduct was willful and wanton, and sought punitive damages in the sum of $10,000.00. The third count alleged damage to Mrs. Nichols in loss of consortium in the sum of $10,000.00, and loss of earnings in the sum of $200.00. The jury returned two verdicts: one in favor of Mrs. Nichols, assessing her damages at $1,200.00; and one in favor of officer Nichols, assessing his damages at $19,305.70.

Judgment was entered for plaintiffs and against defendant for the amounts returned by the jury. After a hearing on defendant's motion to set aside the verdict and judgment, and for judgment in favor of the defendant, or in the alternative to set aside the verdict and judgment and grant a new trial, the court denied the motion to set aside the verdict and for judgment in favor of defendant, and:

'Ordered that the defendant's motion for a new trial is granted on the grounds that the damages awarded by the jury herein are excessive, in that the evidence was insufficient to support the verdict, and unless within fifteen days after service on plaintiffs' attorney of a copy of this order, the plaintiffs file with the clerk of the court a written consent to reduce the verdict to $8,500.00 in favor of plaintiff Ronald J. Nichols and $1,200.00 in favor of Nelma Nichols, in which event the motion for a new trial is in all respects denied.'

Thereafter, plaintiffs filed their consent to reduction of the verdict in favor of officer Nichols to $8,500.00. Defendant brought this appeal from the judgment as thus modified and from the order denying his motion for judgment notwithstanding the verdict, or for a new trial.

By his assignments of error defendant raises the issues of lack of evidence to establish negligence on his part, and that the evidence shows contributory negligence on the part of officer Nichols as a matter of law. As to the first, the evidence shows that although the accident occurred on December 7th, at 7:00 p. m., there was fufficient light at the scene to enable a driver in defendant's position to observe Nichols in the position occupied by him on the roadway. There was some light coming through the underpass from the east side of the railroad. There were four floodlights in the ceiling of the underpass, which appear in plaintiffs' exhibit 7, supra. Seventeenth street did not extend westward beyond Yellowstone avenue. There was a service station on the west side of the avenue directly opposite the underpass, illumination from which lighted up the scene of the accident. Several witnesses testified to the lighting, and that plaintiff was visible where he lay, after the impact, without the aid of headlights from an automobile. One witness, experienced in photography, testified it was light enough to enable him to take a picture without a flash attachment. Defendant testified there was nothing to impair his view at the time.

The point where plaintiff was struck was only 24 feet, two inches directly in front of the stop sign at the west side of the underpass. The jury was justified in concluding that if defendant stopped at the stop sign and made observations to the right, left and ahead, and his headlights were on, all as he testified, he would have seen plaintiff and avoided the accident. Also, there was evidence that defendant had been drinking alcoholic beverages. One officer, the first at the scene, testified defendant was drunk. Two other officers who arrived later testified that in their opinion he was not intoxicated. The record admittedly shows that defendant's companion, who was riding with him at the time, was intoxicated. There was also evidence that defendant's windshield was slightly fogged. It was the jury's function to determine from all the evidence whether defendant was inattentive because of the effects of alcohol, or the presence of an intoxicated companion, or because of the foggy windshield, or for some other reason within his control, he failed to see plaintiff in time to avoid striking him.

In Drury v. Palmer, 84 Idaho 558, 375 P.2d 125 (1962) we said:

'It is not only the duty of the operator to look, but it is his duty to see and be cognizant of that which is plainly visible or obviously apparent, and a failure on his part in this regard, without proper justification or reason, makes him chargeable for failure to see what he should have seen had he been in the exercise of reasonable care. 60 C.J.S. Motor Vehicles § 284, p. 661; 5A Am.Jur. 392, Automobiles and Highway Traffic § 265.' 84 Idaho at 564, 375 P.2d at 128.

'He must look in such prudent and careful manner as to enable him to see what a person in the exercise of ordinary care and caution for the safety of himself and others would have seen under like circumstances. 60 C.J.S. Motor Vehicles § 284c, p. 667; 5a Am.Jur. 678 and 685, Automobiles and Highway Traffic § 705, § 712; Shelton v. Detamore, 198 Va. 220, 93 S.E.2d 314; Kerns v. Lewis, 246 Mich. 423, 224 N.W. 647; Barajas v. Parker, 165 Neb. 444, 85 N.W.2d 894.' 84 Idaho at 562, 375 P.2d at 127.

Anent defendant's contention that plaintiff was contributorily negligent as a matter of law, the record establishes that plaintiff's presence upon the street was required by the duties of his office as a city policeman. The measurements he was taking were for the purpose of fixing the location of the point of impact in the prior collision. This he was required to do. Surrounding conditions were such that it became reasonably necessary for plaintiff to go to the point on the highway where he was struck, in order to locate by measurement the point of impact sought. While so doing it was his duty to exercise reasonable care for his own safety. However, his position is not to be compared to that of a pedestrian jay-walking or loitering on the street.

'* * * His situation is analogous to that of the workman on the highway. He is not charged with the duty of constantly looking for traffic while engaged in work which requires his presence there, and failure so to do does not...