Pierce v. Barenberg

• Decision Date: 16 December 1966
• Docket Number: No. 9702,9702
• Citation: 421 P.2d 149,91 Idaho 354
• Parties: John L. PIERCE and Helen M. Pierce, husband and wife, Plaintiffs-Appellants, v. Leona BARENBERG and Clarence Barenberg, wife and husband, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 149

421 P.2d 149

91 Idaho 354

John L. PIERCE and Helen M. Pierce, husband and wife, Plaintiffs-Appellants, v. Leona BARENBERG and Clarence Barenberg, wife and husband, Defendants-Respondents.

No. 9702.

Supreme Court of Idaho.

Dec. 16, 1966.

Weeks & Davis, Nampa, for appellants.

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

TAYLOR, Justice.

In 1962, the plaintiffs (appellants) John L. Pierce and Helen M. Pierce, husband and wife, resided at 2911 State Street in the City of Boise. They were 'the operators' of what was known as the 'State Street Cafe,' which was located next to and east of their residence. Both the residence and the cafe were located on the south side of State Street, which runs in a generally east-west direction. Plaintiffs had resided at that location and operated the cafe for a period of 12 years. Immediately west of plaintiffs' residence, and adjacent to the intersection of State Street and 30th Street was located a corner grocery store. Across State Street to the north and opposite the residence and store was located a service station known as Scotchman's Corner, at the intersection of State Street and Lemp Street. Adjacent to and east of the service station was located a bicycle shop and the M & W Market. See plat, defendants' exhibit C. About 8:00 o'clock on the evening of December 17, 1962, plaintiff John L. Pierce went to the corner grocery to get money change for use in his restaurant business. Not finding the required change available there, he undertook to cross the street to the north to get the change from the service station or the market. He had reached a point near the north curb line when he was struck by an automobile driven by defendant (respondent) Leona Barenberg, who was accompanied by her husband Clarence Barenberg (defendant-respondent).

Hereinafter we use the word 'plaintiff' as referring to John L. Pierce, and 'defendant' as referring to Leona Barenberg.

State Street was a four-lane through highway, also known as State Highway 44. The two westbound lanes were divided from the two eastbound lanes by a divider strip about four feet wide. Each traffic lane was approximately 11 feet in width. At some undetermined distance east of the intersection of 30th Street and State Street there were, at the time of the accident, two parallel white lines painted across the eastbound lanes. On the east side of the westernmost white line the word 'School' was painted across the traffic lanes, and adjacent to and west of the easternmost line, the term 'Xing' was painted across the traffic lanes. Some six or eight feet laterally along State Street to the east a similar white line was painted across the two westbound traffic lanes and parallel therewith, and farther east was another white line across the westbound lanes. The word 'School' was also painted across the westbound lanes immediately west of the easternmost line and the term 'Xing' was painted across the westbound lanes adjacent to and east of the westernmost line. The distance between these parallel lines and their location in relation to adjacent streets or objects was not established definitely by the evidence. We have located and drawn them on defendants' exhibit C as accurately as the record permits.

The evening of December 17, 1962, at the time of the accident, was a drizzly, dark night and vehicles were moving on the highway with lights on. According to plaintiff's testimony, he crossed the westbound traffic lanes on the east side of the easternmost white line extending across those lanes. He stopped on the dividing strip and looked to his right; observed defendant's car approaching from the east 'approximately a block' away, 'where 28th Street comes in'; he then proceeded across the westbound lanes on the west side of the westernmost white line extending across those lanes. He was nearly across the street, three or four feet from the north side, when suddenly 'all I could see was lights.' He started to 'jump' but was struck before he had time to do so.

Defendant Leona Barenberg testified she was driving about 25 miles per hour in the right-hand westbound lane. Suddenly she saw plaintiff run out into the street right in front of her car, 'he appeared to be running,' and 'immediately I saw him and I put on the brakes and I hit him.' She estimated that she was about 20 to 25 feet from plaintiff when she first saw him. As a result of the impact plaintiff was rolled up over the hood and against the windshield of the car. He was carried forward by the car a short distance and slid off as the car stopped.

Defendant Clarence Barenberg corroborated Leona's testimony and further testified:

'I was looking out the front with her and she was driving watching the road and it was awfully hard to see, it was rainy, cloudy and getting dark, and the first thing I looked out and I started to holler, look out. I started to tell her, watch out, there is a man there. I didn't get that done until the time I said watch out, why she put her foot on the brake and about that same time, why, we hit'; and further testified that

when the car stopped he jumped out and ran over to the plaintiff and covered him with his coat; and that plaintiff was wearing dark clothes.

There was no issue as to defendant's headlights being on; plaintiff himself testified to that fact.

The cause was tried to a jury and resulted in a verdict and judgment in favor of the defendants, from which plaintiffs prosecute this appeal.

One of the principal issues raised by the assignments of error is the availability to plaintiffs of the doctrine of the last clear chance. They assign as error the refusal of the court to give to the jury their requested instruction embodying that doctrine. The only evidence as to the speed of defendant's car was that given by the defendants-about 25 miles per hour. There was no evidence of a greater speed. The darkness, weather conditions, dark road, and dark clothing worn by plaintiff, make the conclusion quite inescapable that defendant did not see plaintiff in time to avoid the collision. At 25 miles per hour defendant's car would reach plaintiff in less than one second from the time she testified she first saw him.

'(The last clear chance) doctrine implies thought, appreciation, mental direction and lapse of sufficient time effectually so to act as to save another from injury to which he has negligently exposed himself. It is not applicable where the emergency is so sudden that there is no time to avert the accident. In the case here, the act which created the peril occurred at practically the same time as the accident in that only six-tenths to seven-tenths of a second, mathematically calculated, elapsed from the time the Laidlaw boy's peril became apparent to appellant Barker before the accident; under the circumstance appellants did not have a last clear chance to avoid the accident. The last clear chance must be a clear one.' Laidlaw v. Barker, 78 Idaho 67, 74, 297 P.2d 287, 291 (1956).

The court properly refused to give the requested instruction. McIntire v. Engle, 90 Idaho 63, 408 P.2d 159 (1965); Kuhn v. Dell, 89 Idaho 250, 404 P.2d 357 (1965); Schwandt v. Bates, 88 Idaho 131, 397 P.2d 244 (1964); Allen v. Idaho Power Company, 84 Idaho 309, 372 P.2d 80 (1962); Hale v. Gunter, 82 Idaho 534, 356 P.2d 223 (1960); Lallatin v. Terry, 81 Idaho 238, 340 P.2d 112 (1959); McIntire v. Oregon Short Line R. R. Co., 56 Idaho 392, 55 P.2d 148 (1936); Fabling v. Jones, 108 Colo. 144, 114 P.2d 1100 (1941); Menke v. Peterschmidt, 246 Iowa 722, 69 N.W.2d 65 (1955); Roland v. Terryland, Inc., 221 Ark. 837, 256 S.W.2d 315 (1953); Gosney v. May Lumber & Coal Co., 352 Mo. 693, 179 S.W.2d 51 (1944); Johnson v. Yellow Cab Co. of D. C., Inc., 93 A.2d 566 (D.C.Mun.App.1953); Clodfelter v. Carroll, 261 N.C. 630, 135 S.E.2d 636 (1964); Cook v. Shoulder, 200 Va. 281, 105 S.E.2d 860 (1958); Juergens v. Front, 111 W.Va. 670, 163 S.E. 618 (1932); Detornos v. American Employers Insurance Co., 170 So.2d 211 (La.App.1964); Wilde v. Kelly, 160 So.2d 713 (Fla.App.1964).

Plaintiffs assigned as error the refusal to give their requested instruction No. 1, which was as follows:

'You are instructed that it is the law of the State that when a person is operating a motor vehicle upon the public highway at night time he or she must proceed at such a rate of speed that he may be able to ordinarily stop short of an object appearing in the radius of his or her lights.'

This request was covered by the court's instructions 18 and 22 which gave to the jury I.C. §§ 49-701(a) and (c), and 49-735. Hawkins v. Chandler, 88 Idaho 20, 396 P.2d 123 (1964).

Plaintiffs also assigned as error the refusal of the court to give their requested instruction No. 4. The proposed instruction was taken from the Manual on Uniform Traffic Control Devices, Section 2B-21, p. 138 (defendants' exh. B) and was as follows:

'You are instructed that 'stop lines' are solid white lines not less than twelve inches nor more than twenty-four inches in width extending across all approaching lanes of traffic. Drivers of vehicles are required to stop behind such 'stop lines' in compliance with a stop sign, traffic signal, officer's direction, or other legal requirement.'

The request presupposes a legal requirement on the part of drivers to stop behind such lines. Here there was no evidence that the lines in the vicinity of the collision were 'stop lines.' There was no 'stop sign, traffic signal, officer's direction, or other legal...