Pearson v. City of Weiser, 7429

• Decision Date: 12 May 1949
• Docket Number: 7429
• Citation: 206 P.2d 264,69 Idaho 253
• Parties: PEARSON v. CITY OF WEISER
• Court: Idaho Supreme Court

206 P.2d 264

69 Idaho 253

PEARSON v. CITY OF WEISER

No. 7429

Supreme Court of Idaho

May 12, 1949

Appeal from District Court, Seventh Judicial District, Washington County; Thomas E. Buckner, Judge.

Reversed and remanded for a new trial.

J. F Martin, of Boise, for appellant.

The rule of distraction of attention requires that the attention of the driver be drawn away from the road and its condition by some happening out of the ordinary; and where it is not shown that anything out of the ordinary course of traffic occurred and the plaintiff driving slowly and in broad daylight, failed to see and avoid running into a road defect he is guilty of contributory negligence as a matter of law and his complaint fails to state a cause of action. The general demurrer should have been sustained. Call v. City of Burley, 57 Idaho 53, 52 P.2d 101; Schawe v. Leyendecher, Tex.Civ.App., 269 S.W. 864; Cited and followed in Call v. City of Burley, supra; Bodenheimer v. City of New Orleans, La.App., 18 So.2d 224; Wilkins v. City of Wilmington, 2 Marv., Del., 132, 42 A. 418.

For temporary forgetfulness, inattention or distraction to constitute an excuse for contributory negligence, it must be shown that the person has "exercised the care and caution which an ordinarily prudent person would have exercised under the same or similar circumstances." Denton v. City of Twin Falls, 54 Idaho 35, 43, 28 P.2d 202; Butland v. City of Caldwell, 51 Idaho 438, 488, 6 P.2d 493; 45 C.J. 940, 947; Osier v. Consumers Co., 42 Idaho 789, 248 P. 438.

George Donart, of Weiser, and Herman Welker, of Payette, for respondent.

Where the attention of a driver of a motor vehicle is distracted by a source not originating within his own mind and not induced, the question of whether he was guilty of contributory negligence in not observing a hole in the pavement becomes a question of fact for a jury. Kirby v. Southern Pacific Railroad Company, 108 Or. 290, 216 P. 735; Newton v. Oregon Short Line Railroad Company, 43 Utah 219, 134 P. 567; Polly v. Oregon Short Line Railroad Company, 51 Idaho 453, 6 P.2d 478.

Temporary forgetfulness or inattention does not generally constitute contributory negligence. When a person exercised the care and caution which an ordinarily prudent person would have exercised under the same or similar circumstances, he is not negligent merely because he temporarily forgot or was inattentive to a known danger. Denton v. City of Twin Falls, 54 Idaho 35, 28 P.2d 202; Butland v. City of Caldwell, 51 Idaho 483, 6 P.2d 493.

Baker, District Judge. Holden, C. J., Givens and Porter, JJ., and Glennon, Dist. J., concur.

OPINION

Baker, District Judge.

The defendant, City of Weiser, has appealed from adverse judgment entered upon verdict in plaintiff's suit to recover damages to his pickup truck and for personal injuries sustained by him all initiated by contact between his pickup truck and hole, which, it is alleged, defendant had negligently permitted to remain in the paved street upon which plaintiff was traveling.

In his complaint plaintiff alleged, in effect, that for several weeks prior to April 1, 1946, the defendant city had knowingly permitted the pavement on the southerly side of West Commercial Street in the defendant city to remain broken and unrepaired resulting in hole of substantial dimensions in the lane of east-bound traffic on said street; that on said day he was driving his pickup truck in an easterly direction along said street at a speed of approximately fifteen miles per hour, was following "in reasonably close proximity" another vehicle proceeding in the same direction and, as he approached the hole in the pavement, met another vehicle traveling in the opposite direction on its own side but near the center line of the street; that his "attention was distracted" by the two vehicles and by reason of such distraction he was not able "by the use of ordinary diligence and power of observation" to avoid the hole in the street. He alleged that one wheel of the truck dropped into the hole causing the vehicle to swerve and to collide with a tree adjacent to the street resulting in the destruction of the truck and severe injuries to his person.

The defendant filed its general demurrer and in support urged that the complaint affirmatively disclosed contributory negligence of plaintiff precluding recovery. The demurrer was overruled. The action of the trial court in that respect will be noticed.

The answer of the defendant, either by express admissions or affirmative allegations, tendered no issue urged in this court as to the existence of the hole in the pavement or that plaintiff's truck hit it or subsequently collided with the tree or that some damage to the truck and injuries to the person of the plaintiff were sustained. The substantial issue results from defendant's allegations that the plaintiff was a frequent traveler over the street, was aware of the existence of the hole, that he drove "without paying any attention whatsoever to where he was going or driving" and, without having his truck under control, permitted it to hit the hole and that any damage to property or injuries to plaintiff's person were proximately caused by his conduct.

No witness, other than plaintiff, testified as to any matter directly connected with the accident. His testimony disclosed that on the date of the accident he was of the age of 75 years, was engaged in farming and stockraising, had resided in the vicinity of Weiser for approximately 60 years and near its westerly boundary for the past three or four years; that during that time it had been his practice to pass over West Commercial Street two or three times per week, usually in his motor vehicle but occasionally on foot; that he had noticed the hole in the pavement for several weeks "had been dodging it all winter", had stopped and examined it and knew it was dangerous. He testified that during the forenoon of April 1, 1946, a clear, dry day, he came to Weiser in his truck; that he was traveling on West Commercial Street at a speed of from 15 to 18 miles per hour, was following, at a distance of some 50 to 60 feet, a vehicle proceeding in the same direction and being operated in the usual and ordinary way; that when he reached the hole he was approaching a street intersection, also a driveway, and was about to meet a vehicle, traveling in the opposite direction, on its own side of the street but "hugging the center line"; that he was watching the intersection, the driveway, the car ahead and the car approaching and did not observe the hole until within some 10 feet of it; that he had no time to apply his brakes and no opportunity to avoid the hole, at one time saying "In order to keep from running into this other car that was approaching, I had to run into a big hole there in the pavement" and at another "Well, I had to take my choice between running into this other car or taking the hole, and I took the hole". When his truck hit the hole, it pulled a tire, got beyond his control, and then hit a tree located, by testimony of a witness for the defendant, some 84 feet from the hole. The evidence does not disclose how the driver of the vehicle ahead of plaintiff avoided the hole or injury or why the action of the operator of that vehicle in avoiding the hole or in driving in and out of it did not direct plaintiff's attention to the hole.

At the conclusion of proof on behalf of the plaintiff, the defendant moved for judgment of nonsuit solely upon the ground that the evidence of the plaintiff disclosed his own contributory negligence. The trial court, evidently deeming his order on the demurrer to be a definite commitment on the subject of contributory negligence, denied the motion. It was renewed as a motion for directed verdict when both parties rested.

As the above statement would indicate, there is no contention by appellant, at least none seriously urged, that the evidence is insufficient to sustain the findings implied from the jury's verdict that a defective condition had negligently been permitted to remain in the street and that it was the proximate cause of the injuries to the plaintiff and his property. All assignments of error deal with some phase of the question of contributory negligence, repeatedly and consistently advanced by the appellant, all relate to its position that, despite its own negligence, the accident would not have occurred without contribution thereto by the plaintiff through the negligent operation by him of his truck.

Appellant first contends that the court did not by instructions detail or point out to the jury the wrongful or negligent acts relied upon by respondent and the jury was therefore left to guess and to speculate. The court did not summarize the allegations in the pleadings or define the issues. By agreement of counsel the pleadings were delivered to the jury in lieu of statement by the court of the matters in controversy. In preliminary statement the court informed the jury that: "They (the pleadings) are given to you only for the purpose of advising you concerning what the respective parties claim to be the facts and their use by you should be limited to that purpose."

By instruction No. 1, which was evidently taken from the case of Curtis v. Ficken, 52 Idaho 426, 16 P.2d 977, the court said in part: "The plaintiff claims that defendant was negligent and sets forth in the complaint the several particulars in which he claims that defendant was negligent -- It is not necessary for the plaintiff to prove all these particular acts of negligence so alleged, but it is necessary that plaintiff establish by a preponderance of the evidence that the defendant was negligent in at least one of the particulars set forth in his complaint or he cannot...