Petersen v. Parry

• Decision Date: 16 December 1968
• Docket Number: No. 10161,10161
• Citation: 92 Idaho 647,448 P.2d 653
• Parties: , 39 A.L.R.3d 1153 Jean C. PETERSEN and Clarice Petersen, husband and wife, Plaintiffs-Appellants, v. John P. PARRY, Administrator of the Estate of Brent T. Johnson, Deceased, and John B. Rogers, Administrator of the Estate of Owen G. Johnson, Deceased, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 653

448 P.2d 653

92 Idaho 647, 39 A.L.R.3d 1153

Jean C. PETERSEN and Clarice Petersen, husband and wife, Plaintiffs-Appellants, v. John P. PARRY, Administrator of the Estate of Brent T. Johnson, Deceased, and John B. Rogers, Administrator of the Estate of Owen G. Johnson, Deceased, Defendants-Respondents.

No. 10161.

Supreme Court of Idaho.

Dec. 16, 1968.

Petersen, Moss & Olsen, Idaho Falls, for plaintiffs-appellants.

Albaugh, Bloem, Smith & Pike and Holden, Holden & Kidwell, Idaho Falls, for defendants-respondents.

SPEAR, Justice.

Appellants (plaintiffs) instituted this action for damages for the alleged wrongful death of their adopted minor child, Curtis T. Petersen, a 13-year-old son.

The first cause of action alleged the negligence of two automobile drivers, i. e., Brent T. Johnson (hereinafter designated as R1) and Owen G. Johnson (hereinafter designated as R2), driver of the automobile in which the deceased minor child was riding at the time the two automobiles collided. The Johnsons were not related.

The collision occurred about six o'clock a. m., during daylight, the morning of August 2, 1965, on a dry, straight, level, two-lane highway about 2 1/2 miles north of Downey, Idaho, on U.S. Highway No. 191 between Salt Lake City, Utah and Pocatello, Idaho. At the point of impact the pavement was over 38 feet wide, and thus amply sufficient to permit the simultaneous passage of two automobiles traveling in opposite directions. The vehicle driven by R2 was proceeding in a northerly direction at the time of the collision; and this vehicle, according to the testimony of the investigating officer, was substantially in the southbound lane, or the wrong lane, of traffic at the moment of impact. This is established by the physical facts, i. e., the skid marks and the gouge marks on the pavement and the damage to the respective vehicles. The evidence of the investigating officer, both orally and from Plaintiffs' Exhibit 8, a photograph taken at the scene of the accident, and Plaintiffs' Exhibit 2, a diagram prepared by the investigating officer, establishes the left front of the vehicle driven by R1 at the time of the impact was a distance of only two feet 10 inches over the center line extending into the northbound lane, following 26 feet of skid marks which originated while the R1 vehicle was entirely within its own or the southbound lane. The testimony of the investigating officer together with Plaintiffs' Exhibits 3, 4, 12, 13 and 14, all being photographs taken by the investigating officer at the scene of the accident and at the damaged car lot to which the vehicles were later towed, discloses conclusively that this was a right front to right fron collision. Both vehicles were approximately 6 feet in width and, therefore, the R2 vehicle must necessarily have been almost entirely across the center line and into the southbound, or wrong lane, of traffic at the moment of impact.

Additionally, the evidence discloses that R2 made no attempt to avoid the accident because his vehicle left no visible skid marks prior to the collision.

Furthermore, the evidence establishes that both vehicles were traveling at the estimated speed of about 60 miles per hour, which was the posted speed limit for this particular highway at that time. R1 did attempt to avoid the accident by braking his vehicle leaving 26 feet of skid marks which may have pulled his vehicle slightly to the left just prior to the collision. These skid marks, as previsously indicated, began when the R1 vehicle was entirely within its own lane of traffic and in less than 1/4 of a second prior to the collision as computed by the investigating officer on the basis of the estimated speeds of both vehicles.

R2 was related by marriage to appellants, being married to the daughter of appellant-husband's sister. He had summer employment with the construction company which appellant-husband supervised, and lived with appellants in their home in Idaho Falls during the summers. He frequently traveled to Logan, Utah on week-ends to visit his wife and child. On the weekend immediately prior to the accident, which occurred on a Monday, r,2 transported the deceased minor to visit his grandparents in Lewiston, Utah which is located about 18 to 20 miles north of Logan. Since they resided about 2 miles off the main highway this meant a slight deviation from R2's normal route of travel. Because R2 was taking the Petersen boy with him, appellant-husband filled the vehicle with gas which cost about $6.00, this deing charged to his gas station account. However, it was not contended by appellants that their son could not have gone with R2 to visit his grandparents if the tank of gas had not been furnished.

These are all the facts presented to the trial court by the appellants during the trial of this cause, and indeed are necessarily all the facts that can ever be presented to any court, because the five occupants of the two cars involved were all killed in the accident and there are no other known eye witnesses thereto. In light of these meager facts, it is my opinion the trial judge was entirely correct when he granted respondents' motions for involuntary dismissal of appellants' first cause of action at the completion of their case in chief.

It should be noted that appellants' second cause of action was directed against the decedent Brent T. Johnson (R1) and his personal representative, John P. Parry, and was based partially on the doctrine of res ipsa loquitur. The trial court granted a motion to dismiss this second cause of action. The cause then proceeded to trial on the first cause of action.

At the close of appellants' case in chief both respondents moved for an involuntary dismissal. The trial court granted the motion on the ground that appellants' evidence and the facts as proven thereby, when considered most favorably to appellants, were equally consistent with the absence as with the existence of negligence or gross negligence on the part of the drivers of the two automobiles. The court also ruled as a matter of law that the decedent minor, Curtis T. Petersen, at the time of the collision, was a guest in Owen Johnson's (R2) automobile within the meaning of the motor vehicle guest statute, I.C. § 49-1401.

Appellants have appealed both from the order granting judgment of involuntary dismissal of their second cause of action, I.R.C.P. 12(b)(6), and from the order of involuntary dismissal of their first cause of action, I.R.C.P. 41(b). However, they assign error committed only insofar as the trial court granted respondents' motion for an involuntary dismissal of their first cause of action. We therefore assume that appellants have abandoned their appeal from the judgment of dismissal under I.R.C.P. 12(b)(6), of their second cause of action.

Appellants' alleged basis of recovery is grounded upon I.C. §§ 5-310 ¹ and 5-327 ².

I.C. § 5-327 provides recovery for injury or death 'caused by the wrongful act or negligence of another,' but only 'upon some competent, satisfactory evidence corroborating the testimony of said injured person regarding negligence and proximate cause.'

In ruling on a motion for involuntary dismissal under I.R.C.P. 41(b) ³ the following standard has been adopted:

'A motion for a nonsuit ⁴ presents a question of law, as to whether the evidence viewed in the light most favorable to the plaintiff, with all the reasonable inferences properly deducible therefrom, presents a prima facie case entitling the plaintiff to have the issues submitted to the jury. (Citations) If the evidence establishes a prima facie case and the motion is nevertheless granted, the decision is against the law.' Julien v. Barker, 75 Idaho 413, 272 P.2d 718 (1954); Carson v. Bye, 79 Idaho 495, 321 P.2d 604 (1958); Whitt v. Jarnagin, 91 Idaho 181, 418 P.2d 278 (1966).

'Where there is substantial competent evidence tending to establish plaintiff's case, or where reasonable minds may differ as to the conclusion to be reached therefrom, the cause should be submitted to the jury.' Bancroft v. Smith, 80 Idaho 63, 323 P.2d 879 (1958); Cf. Sturgis v. Garrett, 85 Idaho 364, 379 P.2d 658 (1963).

It is axiomatic, that the plaintiffs in a tort action founded upon the alleged negligence of a defendant must prove by a preponderance of the evidence (1) that the conduct of the defendant was negligent and (2) that such negligence was the proximate cause of the injuries or death for which the cause of action has been instituted. In my opinion if the facts as established in the case at bar had been submitted to a jury and the jury had returned a verdict in favor of the appellants as against either respondent, the trial judge would have had no alternative except to grant a judgment non obstante veredicto (n.o.v.) upon proper motion therefor.

On the morning of the accident, and just prior thereto, R1 was driving his vehicle in his own-the southbound-lane of traffic. He was faced with a situation of peril by the approaching R2 vehicle traveling substantially if not entirely in his, R1's lane of traffic. He braked down, as shown by the skid marks of the R1 vehicle, and pulled, or by the braking was pulled, slightly to the left in an attempt to avoid the impending collision. This occurred less than 1/4 of a second before the actual impact of the two vehicles. There is serious doubt in my mind whether this slight infraction of the provisions of I.C. § 49-708 constitutes the type of 'driving' intended in the prohibition of the statutory language,

'Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, * * *.'

But even if this be conceded, this court has recognized that the circumstances involved may well furnish an excuse or justification for the negligence presumed to arise on the proof of violation of such a statute. This principle is set out in Bale v. Perryman, 85 Idaho 435, on page 443, 380 P.2d 501, on page 505, as follows:

'It...