Quillin v. Colquhoun

• Decision Date: 26 May 1926
• Citation: 247 P. 740,42 Idaho 522
• Parties: MINA B. QUILLIN and P. J. QUILLIN, Appellants, v. ETHEL COLQUHOUN and F. S. COLQUHOUN, Respondents
• Court: Idaho Supreme Court

247 P. 740

42 Idaho 522

MINA B. QUILLIN and P. J. QUILLIN, Appellants, v. ETHEL COLQUHOUN and F. S. COLQUHOUN, Respondents

Supreme Court of Idaho

May 26, 1926

AUTOMOBILES-PERSONAL INJURY-INSTRUCTIONS-PLEADING-EVIDENCE-APPEAL AND ERROR-WITNESSES.

1. Requested instruction, in action for injuries, that if plaintiff had reached her automobile parked on street before being struck by defendant's automobile it would make no difference whether she had used due care in crossing street and was not guilty of any contributory negligence in crossing the street, held properly refused, especially in view of other instructions submitting questions whether she had reached car and in what manner.

2. Requested instruction, in action for injuries caused by automobile in crossing street to parked car, embodying doctrine of res ipsa loquitur, held not applicable.

3. Instruction on last clear chance should have been framed without reiteration that one struck by automobile, if guilty of negligence contributing to accident, could not recover unless defendant had clear chance to avoid accident.

4. Instruction that jury, in action for injuries, could take into consideration force of blow with which defendant's car struck plaintiff's car, was properly refused as being comment on weight to be given evidence.

5. Instruction that plaintiff, struck while crossing street by automobile approaching from her right, should have looked "before entering street" and given right of way to defendant, was erroneous, as question was one of fact for jury.

6. Propriety of court's action in permitting amendment to answer need not be considered, where new trial is granted amendment then being part of answer.

7. Laws 1921, chap. 249, relative to operation of motor vehicles, by prohibiting passage of ordinances inconsistent with provisions of act, thereby expressly granted right to make ordinances not inconsistent therewith.

8. Ordinance giving pedestrians right of way at street intersections and crossings, and vehicles right of way between intersections and crossings, does not conflict with Laws 1921, chap. 249.

9. Instruction based on ordinance giving pedestrians right of way at intersections and crossings, and vehicles right of way between intersections and crossings, held not such as would persuade jury that it was not driver's duty to take precautions between intersections, in view of other instructions requiring driver to use care in passing and looking out for pedestrians.

10. Automobile driver does not as matter of law have duty, after seeing pedestrian, to stop or slacken speed of car, rather than to turn out to avoid accident, and instruction to that effect was properly refused; driver having duty to avoid accident in best manner possible.

11. Question whether automobile driver should or could have seen pedestrian before she did was question for jury, and instruction that failure to see her until she was in front of car was negligence was properly refused.

12. Instruction, in action for injuries when struck by automobile, that if collision was an accident and not attributable to negligence of anyone verdict should be for defendants, should not have included words "an accident."

13. Statement by bystander, after automobile accident, that driver was learning to drive her car, would be admissible in action for injuries if proper foundation was laid.

14. Statement by bystander, after automobile accident, that driver was learning to drive, not shown to have been made in presence of driver, was inadmissible.

15. In action for injuries when struck by automobile, question asked own medical expert by defendant, as to whether injured persons did not generally improve after lawsuit was over, was objectionable under C. S., sec. 8032, as cross-examina- tion of own witness, but not prejudicial in view of answer that worry over outcome of case generally influenced condition for worse, and conditions improved after case was settled.

16. Exclusion on cross-examination of defendant in action for injuries when struck by automobile, or question whether she took names of witnesses who were present and reported accident, was proper as not being material.

17. Laws 1921, chap. 249, sec. 1, subd. 16, requiring automobile drivers not to exceed twelve miles per hour at schoolhouses held to have no application to case of adults injured at such place.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon W. F. McNaughton, Judge.

Action for damages for personal injuries. Judgment for defendants. Reversed and remanded.

Judgment reversed and a new trial granted. Costs awarded to appellants.

J. F Ailshie and J. F. Ailshie, Jr., for Appellants.

Even though a pedestrian be guilty of negligence in attempting to cross a street between intersections, the driver of an automobile will still be liable for running on to and injuring such pedestrian if he could have by exercise of reasonable diligence discovered such pedestrian in time to avoid a collision. (Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254; Denison v. McNorton, 228 F. 401; Schingle v. Baughman (Mo. App.), 228 S.W. 897; Pool v. Brown, 89 N.J.L. 314, 98 A. 262; Adair v. McNeil, 95 Wash. 160, 163 P. 393; Weidner v. Otter, 171 Ky. 167, 188 S.W. 335; Huddy on Automobiles, 6th ed., sec. 438; Ivy v. Marx, 205 Ala. 60, 14 A. L. R. 1173, 87 So. 813; Stone v. Gill, 52 Cal.App. 234, 198 P. 640; Walker v. Rodriguez, 139 La. 251, 71 So. 499; Short v. Boise Valley Traction Co., 38 Idaho 593, 225 P. 398.)

Even though the action of plaintiff may have been the primary cause of the injury, she may recover if, notwithstanding that fact, defendant by the exercise of reasonable care could have avoided the accident. (Pilmer v. Boise Traction Co., supra; Short v. Boise Valley Traction Co., supra; Nichols v. Chicago B. & Q. Ry. Co., 44 Colo. 501, 98 P. 808; King v. Brenham Auto Co. (Tex.), 145 S.W. 278.)

The result of the impact from a moving car with another vehicle or object is better evidence of speed of the car than is the opinion of an observer, and is a proper matter to be considered by the jury in determining the question of speed and negligence. (Huddy on Automobiles, 6th ed., sec. 928; Maritzky v. Shreveport Ry. Co., 144 La. 692, 81 So. 253; Peterson v. New Orleans Ry. & S. Co., 142 La. 835, 77 So. 647; Brennan v. Metropolitan St. Ry. Co., 60 A.D. 264, 69 N.Y.S. 1025; Indianapolis St. Ry. Co. v. Bordenchecker, 33 Ind.App. 138, 70 N.E. 995; Graham v. Consolidated Tea Co., 64 N.J.L. 10, 44 A. 964; Zolpher v. Camden & S. R. Co., 69 N.J.L. 417, 55 A. 249; Hoppe v. Chicago, M. & St. P. Ry. Co., 61 Wis. 357, 21 N.W. 227; Volger v. Central Crosstown R. Co., 83 A.D. 101, 82 N.Y.S. 485.)

A pedestrian has just the same rights upon the highway as the automobile, and the driver of an automobile must pay attention to pedestrians who are on the highway and when necessary slacken his speed to protect the pedestrian and prevent the infliction of an injury. (Diamond v. Cowles, 174 F. 571, 98 C. C. A. 417; Ivy v. Marx, 14 A. L. R. 1176 et seq.; Forgy v. Rutledge, 167 Ky. 182, 180 S.W. 90; Vannett v. Cole, 41 N.D. 260, 170 N.W. 663; C. S., sec. 1613.)

Where the instrumentality and agency causing an injury is wholly under the control of defendant and the object struck was standing still the doctrine of res ipsa loquitur applies and the burden is on defendant to justify or excuse himself. (Judson v. Giant Powder Co., 107 Cal. 549, 48 Am. St. 146, 40 P. 1020, 29 L. R. A. 718; Bauhofer v. Crawford, 16 Cal.App. 676, 117 P. 931; O'Neill v. Chappell, 38 Cal.App. 375, 176 P. 370; Odom v. Schmidt, 52 La. Ann. 2129, 28 So. 350.)

The speed limit in this state in passing schoolhouses is twelve miles per hour and the jury should have been so instructed. (1921 Sess. Laws, chap. 249, subd. 1.)

No municipality has any authority to maintain any ordinance or regulation modifying or changing the law as prescribed by the statute with reference to the respective rights of pedestrians and automobiles on the streets thereof. (1921 Sess. Laws, chap. 249, subd. 25.)

Evidence of a statement made in the presence of the defendant immediately following an accident as to the negligence or attitude of the defendant at the time which was undenied and uncontradicted by the defendant is admissible in evidence and its weight is a matter for the jury to determine. (Baldarachi v. Leach, 44 Cal.App. 603, 186 P. 1060; In re Estate of Snowball, 157 Cal. 301, 107 P. 598; State v. Ellison, 266 Mo. 604, Ann. Cas. 1918C, 1, 182 S.W. 996; Kinzell v. Chicago M. & St. P. Ry. Co., 33 Idaho 1, 190 P. 255.)

J. L. McClear and McCarthy, Edge & Lantz, for Respondents.

Whether or not Mrs. Quillin was guilty of contributory negligence was a question for the jury, if not guilty of contributory negligence as a matter of law under the circumstances. (Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Daugherty v. Metropolitan M. Car Co., 85 Wash. 105, 147 P. 655; Harder v. Mathews, 67 Wash. 487, 121 P. 983; Moss v. H. R. Boynton Co., 44 Cal.App. 474, 186 P. 631; Niosi v. Empire Steam Laundry Co., 117 Cal. 257, 49 P. 185; Dimura v. Seattle Transfer Co., 50 Wash. 633, 97 P. 657, 22 L. R. A., N. S., 471; Rumpel v. Oregon Short Line & N. U. Ry. Co., 4 Idaho 13, 35 P. 700, 22 L. R. A. 725; Bressan v. Herrick, 35 Idaho 217, 205 P. 555; Testo v. Oregon-Washington R. & Nav. Co., 34 Idaho 765, 203 P. 1065; McKenna v. Grunbaum, 33 Idaho 46, 190 P. 919; Tucker v. Palmberg, 28 Idaho 693, 155 P. 981; Burgesser v. Bullocks, 190 Cal. 673, 214 P. 649; Lord v. Stacey, 68 Cal.App. 517, 229 P. 874; Davis v. John Breuner Co., 167 Cal. 683, 140 P. 586.)

The state law requiring a speed of twelve miles an hour when passing...