Pridgen v. Lewallen

• Decision Date: 09 February 1973
• Docket Number: No. 10908,10908
• Citation: 506 P.2d 110,95 Idaho 213
• Parties: Thaddeus PRIDGEN, Plaintiff-Appellant, v. John E. LEWALLEN and Barbara l. Lewallen, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 110

506 P.2d 110

95 Idaho 213

Thaddeus PRIDGEN, Plaintiff-Appellant, v. John E. LEWALLEN and Barbara l. Lewallen, Defendants-Respondents.

No. 10908.

Supreme Court of Idaho.

Feb. 9, 1973.

Donart & Higgins, Weiser, for plaintiff-appellant.

Ryan & Sweet, Weiser, for defendants-respondents.

DONALDSON, Chief Justice.

This case arose out of a car-pedestrian accident which occurred near the intersection of East Seventh Street and East Main Street in Weiser, Idaho. At about 6:00 p.m. on December 4, 1969, plaintiff-appellant Thaddeus Pridgen was struck by a motor vehicle owned by defendants-respondents John E. Lewallen and Barbara I. Lewallen. At the time of the accident, the car was being driven by Barbara Lewallen (referred to as the defendant for purposes herein).

At a jury trial, the plaintiff testified that he crossed East Main Street in the crosswalk at the intersection and was struck by the defendant's vehicle as he was about to get into his parked car. The plaintiff admitted that he left the crosswalk before reaching the sidewalk toward which he was headed; but he claimed that he did remain in the crosswalk at least until he was even with his parked car, when he turned left and walked 'directly up the traffic lane' to his car. Art Redman, a defense witness, testified that the plaintiff crossed the street at an angle, heading away from the crosswalk. Various witnesses testified that the plaintiff was dressed in dark clothes at the time of the accident. The defendant driver testified that she did not see him until it was too late to avoid hitting him. The plaintiff testified that he was wearing dark blue pants, a 'powder blue' jacket, and a brown hat. A jury rendered a verdict in favor of the defendants, and the plaintiff appeals from the resulting judgment.

The plaintiff-appellant's sole contention on appeal is that the trial court erred in refusing to instruct the jury that when necessary, a driver must give warning to a pedestrian by sounding the horn. Plaintiff's requested instruction no. 1 reads as follows:

'You are instructed that it is the statutory law of Idaho that every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary.' Emphasis added.

The respondents agree that the emphasized portion of this requested instruction was not covered by any of the instructions given by the court.

The appellant relies upon I.C. § 49-735 and Lallatin v. Terry, 81 Idaho 238, 340 P.2d 112 (1959). I.C. § 49-735 in pertinent part provides:

'(E)very driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary.'

In Lallatin, supra, the Court stated that:

'(I.C. § 49-735) has particular application to the rights and duties of pedestrians and drivers in areas where crosswalks are provided and where the presence of pedestrians might be anticipated by drivers of motor vehicles.' 81 Idaho at 248, 340 P.2d at 119.

The appellant therefore argues that I.C. § 49-735 was applicable in this case because the accident occurred near a crosswalk and in an area (i. e., across from a grocery store) where the presence of pedestrians might be anticipated. And, the appellant submits, the court's instructions failed to cover all the law contained in § 49-735; that is, the court failed to instruct the jury that a driver must give warning by sounding a horn when necessary.

The respondents contend that there is no evidence in the record to show that the defendant driver had a reasonable opportunity to sound her horn. The respondents argue that because the appellant was wearing dark clothing, the defendant driver could not see him until a fraction of a second prior to impact, and thus she did not have a chance to sound her horn. Therefore, the respondents submit, the requested instruction was not applicable in this case and was properly omitted.

It is our opinion that the requested instruction was not applicable to the facts of this case. The defendant driver testified that she did not see the plaintiff (who appeared to her as a 'dark object') until he was 'right at' her car; to have sounded her horn at that point would have been an exercise in futility. There is no evidence in the record to show that the defendant saw or in the exercise of reasonable care should have seen the plaintiff in time to effectually sound a warning. In such a case, negligence cannot be predicated upon the defendant's failure to sound the horn. Hopper v. Reed, 320 F.2d 433, 435 (6th Cir. 1963); Jordon v. Clough, 313 S.W.2d 581, 584 (Ky.1958); Owens v. Holmes, 199 Or. 332, 261 P.2d 383, 386 (1953); Hunter v. Michaelis, 114 Utah 242, 198 P.2d 245, 252, 255 (1948); Ferguson v. City of Seattle, 27 Wash.2d 55, 176 P.2d...