Potter v. Mulberry

• Decision Date: 06 September 1979
• Docket Number: No. 12734,12734
• Citation: 599 P.2d 1000,100 Idaho 429
• Parties: Helen POTTER and Neldon Potter, husband and wife, Plaintiffs-Appellants and Cross-Respondents, v. Theodore E. MULBERRY and Nora Ann Mulberry, husband and wife, Defendants-Respondents and Cross-Appellants.
• Court: Idaho Supreme Court

Page 1000

599 P.2d 1000

100 Idaho 429

Helen POTTER and Neldon Potter, husband and wife, Plaintiffs-Appellants and Cross-Respondents, v. Theodore E. MULBERRY and Nora Ann Mulberry, husband and wife, Defendants-Respondents and Cross-Appellants.

No. 12734.

Supreme Court of Idaho.

Sept. 6, 1979.

Dean Williams, of Kerr, Williams & Clarke, Blackfoot, for plaintiffs-appellants and cross-respondents.

Morton B. Hiller, of St. Clair, Hiller, Benjamin, Wood & McGrath, Idaho Falls, for defendants-respondents and cross-appellants.

BISTLINE, Justice.

This personal injury and property damage action arose out of a daylight automobile collision on a through county highway near Idaho Falls, Idaho. Appellant Helen Potter testified to driving south on Jameston Road at 40-45 miles per hour, below the posted speed limit of 50 miles per hour. As she approached the Cotton Road intersection, on her left she saw respondent Mulberry's car (operated by Nora Ann Mulberry) stopped at a stop sign on the east side of Jameston Road. Mrs. Potter testified there was a car coming from the south and Mrs. Mulberry was looking in that direction as she drove into the intersection in front of the oncoming Potter car. Mrs. Potter slammed on her brakes, leaving 29 feet of skid marks, but was unable to avoid the collision. The point of impact was in Potter's lane of travel which was the west lane of Jameston Road. Mrs. Mulberry was Mulberrys' only witness as to how the collision happened. She testified that she waited until the northbound car mentioned by Mrs. Potter passed the intersection, and then, after looking both ways, proceeded into the intersection at a moderate rate of speed. Mrs. Mulberry testified that she did not see the Potter car while stopped at the stop sign, from where she traveled entirely across the east lane of Jameston Road still without seeing the Potter car. At the point where the accident occurred Jameston Road (traveled by Mrs. Potter) is a through road with stop signs on both sides of the intersection. The only obstructions which might be said to have blocked Mrs. Mulberry's view up and down Jameston Road before entering into the intersection were a stop sign and a telephone pole on the northeast corner. The evidence also showed the presence of a canal bank which might have served as an obstruction to Mrs. Mulberry's vision some distance back from the stop sign where she brought her car to a halt.

Gary Wells, who possessed a Ph.D. in finance, was called to testify as to the value of the plaintiff's lost services as a housewife. A defense objection on the grounds that such evidence was incompetent was sustained and an offer of proof denied on the basis that the jury is equally competent as the witness, expert testimony in this area not being necessary.

The jury in a special verdict found both Mrs. Mulberry and Mrs. Potter negligent in causing the collision. Negligence was attributed 40% To Mrs. Potter and 60% To Mrs. Mulberry. The Potter property damage was set at $1,315 and Mrs. Potter's personal injury damages at $5,000. Judgment in favor of Potters for $3,789 was entered. Mulberrys filed a motion to reduce the awarded damages by $1,971.54 by reason of previous payments made by Mulberrys' insurance company to pay Mrs. Potter's medical expenses and for the Potters' property damage. Potters filed a $1,059 cost bill and also claimed attorney's fees. Potters also filed a motion for judgment notwithstanding the verdict contending that Mrs. Potter was guilty of no causative negligence, and hence Mrs. Mulberry's negligence in causing the accident was 100%, and also urging that Mrs. Potter's damages were greater than those awarded by the jury. Alternatively, Potters requested a new trial based on grounds that the court had improperly instructed the jury and the jury did not follow all of the court's instructions.

All motions were denied. The Potters appealed; the Mulberrys cross-appealed.

We agree with the Potters that there was not sufficient evidence here to sustain the jury verdict that Mrs. Potter was at all responsible for the collision. This was a through highway for Mrs. Potter. For Mrs. Mulberry it was a stop intersection. I.C. § 49-729(b) is applicable here, and provides direction in considering the issue of Mrs. Potter's responsibility for the collision:

"(E)very driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop as required by section 49-751 And after having stopped shall yield the right of way to any vehicle which has entered the intersection from another roadway or which is approaching so closely on said roadway as to constitute an immediate hazard, . . ."

I.C. § 49-751(d), also applicable, states:

"(E)very driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the crosswalk on the near side of the intersection or in the event there is no crosswalk Shall stop at a clearly marked stop line, but if none, then At the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection."

In Foster v. Thomas, 85 Idaho 565, 572, 382 P.2d 792, 796 (1963), where an automobile coming from a stop sign collided with a motorbike being driven on a through street, this Court said:

"Under the provisions of I.C. § 49-729, it was the duty of respondent to yield the right of way to any vehicle which was approaching on the highway so closely as to constitute an immediate hazard. If appellant was observing traffic regulations as he proceeded to the intersection he was entitled to assume that anyone approaching or entering the same would comply with said statute. Coughran v. Hickox, 82 Idaho 18, 348 P.2d 724." (Emphasis added)

There is no evidence that Mrs. Potter was not observing traffic regulations as she proceeded down Jameston Road. In fact, her uncontradicted testimony was that she was driving 5 to 10 miles per hour below the posted speed limit. There were no unusual weather or road conditions that would have necessitated driving at a slower speed.

Mrs. Potter was entitled to assume that Mrs. Mulberry would comply with the statutes. In Stucki v. Loveland, 93 Idaho 253, 257, 460 P.2d 388, 392 (1969), it was said:

"I.C. § 49-751(d) places the duty upon the driver of the vehicle approaching the stop sign to stop before entering the controlled intersection. Other vehicles approaching such a controlled intersection are entitled to rely upon the mandatory provisions of that statute. (Citations omitted) It is the duty of the driver approaching the stop sign to come to a halt and determine if it is safe to proceed across the highway; It is not the duty of the driver of the vehicle on the sign-protected through highway to assume drivers will violate such a mandatory statutory duty. (Citations omitted)

"In this case where there was a direct violation of the mandatory provisions of the statute and no explanation or justification offered for such violation, the proximate cause of the accident could not be attributed to anything other than the failure of the driver of the Loveland vehicle to stop at the stop sign before proceeding through the intersection. (Citations omitted) It is our conclusion that there were no actions on the part of respondent Hahn that could be considered as a proximate cause of the accident. (Emphasis added)

Likewise, there is no evidence in this record which will sustain a jury finding of actions on the part of Mrs. Potter which could be considered as a proximate cause of...