Pittman v. Sather, 7380

• Decision Date: 18 December 1947
• Docket Number: 7380
• Citation: 188 P.2d 600,68 Idaho 29
• Parties: PITTMAN et ux. v. SATHER et al
• Court: Idaho Supreme Court

188 P.2d 600

68 Idaho 29

PITTMAN et ux. v. SATHER et al

No. 7380

Supreme Court of Idaho

December 18, 1947

Appeal from District Court, Eighth Judicial District, Kootenai County; E. V. Boughton, Judge.

Reversed, and remanded for a new trial.

Whitla & Knudson, of Coeur d'Alene, for appellants.

The operator of a motor vehicle must have his vehicle equipped with headlights and brakes as required by statute and a violator of such statute is guilty of negligence per se if such violation contributes proximately to the accident. Sec 48-547 I.C.A. as amended by Chap. 40 of 1937 S.L.; Sec 48-540 I.C.A. as amended by Chap. 171 of 1933 S.L.; Hutchinson v. Miller & Lux, 60 Cal.App. 1, 212 P 394.

A person who uses a defective highway knowing, or having reason to know, that it is then in the process of construction is guilty of negligence and the law applicable to highways regularly used by the public as such is not applicable to a highway which is under construction. Jones v. Collins, 177 Mass. 444, 59 N.E. 64; Buckingham v. Commary-Peterson Company, 39 Cal.App. 154, 178 P. 318; O'Brien v. Alston, 61 Utah 368, 213 P. 791.

J. Ward Arney, of Coeur d'Alene, for respondents.

Hyatt, Justice. Budge, C. J., and Givens, Holden and Miller, JJ., concur.

OPINION

Hyatt, Justice.

Respondents brought actions, consolidated for trial, against appellants for damages for injuries to their persons and motor vehicle received from a nighttime collision of said vehicle with a stock pile of crushed rock, located on a four lane highway substantially constructed but not then completed nor opened for public travel, resulting from alleged negligence of the appellants as contractors in charge of the construction, in failing to establish lights, signs and barricades to warn the public from traveling on said highway and of the existence of the stock pile. Respondents recovered judgment, from which, together with an order denying a motion for a new trial and for judgment notwithstanding verdict, this appeal is taken.

Appellants were contractors engaged in the construction of a new four lane highway to replace a part of old No. 10, a two lane highway, through the Village of Post Falls, Idaho. The new construction, approaching the Village from the west, ran easterly through the northerly portion thereof, and then gradually curved to the south to reach old No. 10 on the east of the Village. Old No. 10 in approaching Post Falls from the west, ran east on the north side of the new highway, and after entering the Village turned directly south across such new highway, continued southerly for about four blocks, and then turned and continued east to the point where the new construction would join it.

At the time of the accident, the concrete surface of the new highway was completed, but the two roads had not yet been connected up at this easterly junction, and the new highway was not and never had been opened to public travel. Traffic from the west on old No. 10 was diverted east, for two blocks on Mullan Road, from the point where No. 10 turned south through Post Falls, and was then diverted south on Spokane Street, crossing the new construction, and continuing until it reached No. 10 again.

Respondents were hauling ore concentrates from Colville, Washington, to Kellogg, Idaho, and had been over the detour route several times and knew of the construction. On this particular occasion, according to their testimony, they proceeded east on Mullan Road from the original detour point, with the wife driving the vehicle and the husband riding beside her, but missed the southerly turn onto Spokane Street, although they were looking for detour signs; they continued east on Mullan Road through Post Falls and beyond, and then realized they were apparently on the wrong road, getting away from the detour, and would have to turn south in order to get onto old No. 10 again; thereupon they turned and traveled south on another road, by which they eventually came to the new highway; they saw no barricades, structures, signs or anything anywhere at this intersection to warn against using the new highway, and seeing wheel tracks thereon, they assumed it was open to travel, and proceeded east on the same.

Across the new highway, at its east end, appellants had placed a stock pile of mixed oil and gravel, dark in color, which was to be used in making the connection between the two highways. Existence of the stock pile was not indicated by flares, lights or other warning signs.

Respondents further testified that the night was dark, and they were unable to see the stock pile in time to bring their vehicle to a stop and avoid running into it, although their speed was about 25 miles per hour, and the lights and brakes in their vehicle were in good working order and condition.

Errors assigned and discussed by appellants are the giving of certain instructions and refusal of others.

Appellants first complain of the refusal of the court to give these two requested instructions:

"You are instructed that it is not enough that a driver be able to begin to stop within the range of his vision, or that he used diligence to stop after discerning an object. The rule makes no allowance for delay in action, he must so drive that he can and will discover an object, perform the manual acts necessary to stop, and bring the car to a complete halt within such range."

"You are instructed that it is the law of this State that when a person is operating a motor vehicle upon the public highway at night time he must proceed at such rate of speed that he may be able ordinarily to stop short of an object appearing in the radius of his lights. Generally it is negligence as a matter of law, or at least strong evidence of negligence, for a motorist to operate a motor vehicle on a highway at such a speed that the vehicle cannot be stopped within the distance within which objects can be seen ahead of the vehicle."

No error resulted from the refusal. The court instructed (No. 9): "One driving in the night time must drive at such a rate of speed that he may be able ordinarily to stop short of an object appearing within the radius of his lights and he must see an object that an ordinary prudent driver under like circumstances would have seen."

This Court said in Maier v. Minidoka County Motor Co., 61 Idaho 642, at page 650, 105 P.2d 1076, at page 1079: "Generally it is negligence as a matter of law, or at least strong evidence of negligence, for a motorist to operate his automobile on a highway at such a speed that the automobile cannot be stopped within the distance within which objects can be seen ahead of the automobile. Goodman v. Wisby, 152 Kan. 341, 103 P.2d 804. This court has placed its approval upon the doctrine that one driving at nightime must proceed at such rate of speed that he may be able ordinarily to stop short of an object appearing in the radius of his lights. Baldwin v. Mittry , 102 P.2d 643; Stanger v. Hunter, 49 Idaho 723, 291 P. 1060. See also Flynn v. Kumamoto, 22 Cal.App.2d 607, 72 P.2d 248; Hatzakorzian v. Rucker-Fuller Desk Co., 197 Cal. 82, 239 P. 709, 41 A.L.R. 1027, and annotation, page 1040; Meads v. Deener, 128 Cal.App. 328, 17 P.2d 198; Ruth v. Vroom, 245 Mich. 88, 222 N.W. 155, 62 A.L.R. 1528, and note, page 1531; Mathers v. Botsford, 86 Fla. 40, 97 So. 282, 32 A.L.R. 881, and note, page 887."

The first request is not the law in this State. The rule laid down in the Maier case, supra, does not require that one be able absolutely to stop short of an object appearing in the radius of his lights, regardless of existing conditions, but only that he drive at night at such a speed as to be able ordinarily to so stop. Whether respondents were or were not negligent in driving at such a speed as not to be able to stop before the collision, was a question for the jury to determine under all the evidence.

While the second request follows the language of the Maier case, we believe Instruction No. 9 fairly and substantially states the law. There is no reversible error when such is the case, even though an instruction could be more complete. Shaddy v. Daley, 58 Idaho 536, 541, 76 P.2d 279; Basye, et al., v. Hayes, 58 Idaho 569, 76 P.2d 435; Goodman v. Village of McCammon, 42 Idaho 696, 247 P. 789.

Appellants next assign as error the giving of that part of Instruction No. 6: "In considering the claim of the defendants that the contributory negligence of the plaintiffs was responsible for the damage and injury, you must remember that the defendants bear the burden of establishing by preponderance of the evidence that the plaintiffs contributed by their own negligence to their injury in damage. In other words, it is not the duty of the plaintiffs to disprove contributory negligence. It is the duty of the defendants to prove contributory negligence and contributory negligence, in order to be a defense to this action, must be established by the defendants by a preponderance of the evidence." and all of Instruction No. 11: "It is the duty of the jury to determine from the facts and the law as to whether or not the collision between the vehicle of the plaintiffs and the stock pile was caused by the negligence of the defendants, or was caused by the contributory negligence of the plaintiffs. If caused solely by the negligence of the defendants, your verdict should be for the plaintiffs." arguing that these instructions, particularly No. 6, advised the jury that evidence of contributory negligence had to be introduced by the defendant, otherwise the defense of contributory negligence could not be considered; and disregarded the proposition herein contended for by appellant, that the jury had a right to consider the testimony and evidence of the plaintiffs themselves in determining...