Reed v. Green

Citation90 Idaho 526,414 P.2d 445
Decision Date18 May 1966
Docket NumberNo. 9696,9696
PartiesW. A. REED and Susan Reed, husband and wife, Plaintiffs-Respondents, v. Joseph G. GREEN and Sinclair Refining Company, a corporation, Defendants-Appellants.
CourtUnited States State Supreme Court of Idaho

Page 445

414 P.2d 445
90 Idaho 526
W. A. REED and Susan Reed, husband and wife, Plaintiffs-Respondents,
Joseph G. GREEN and Sinclair Refining Company, a corporation, Defendants-Appellants.
No. 9696.
Supreme Court of Idaho.
May 18, 1966.
Rehearing Denied June 7, 1966.

[90 Idaho 527]

Page 446

Parsons, Smith & Snow, Burley, for appellants.

[90 Idaho 528] Bellwood & Goodman, Rupert, for respondents.

McFADDEN, Chief Justice.

Plaintiffs-respondents instituted this action to recover damages for the death of their minor daughter, Charlotte Ann Reed, resulting from a collision between the automobile in which she was riding and a tank-truck and tank-trailer of the appellant Sinclair Refining Company, driven at the time of the accident by appellant Green. The accident occurred at about 11:30 p. m., March 8, 1963, on Main Street, also designated as Highway 30, in Burley, Idaho.

Following trial by the court, sitting without a jury, the court entered findings of fact, conclusions of law and judgment awarding the respondents $10,993.10 damages, from which judgment this appeal was taken.

The accident occurred near the western limits of Burley. The highway at that point runs generally in an east and west direction; it was straight with unobstructed vision to the west for 1000 feet or more; some distance to the east there was a slight turn in a southeasterly direction. This highway has two westbound and two eastbound lanes of traffic marked by solid double yellow lines down the center.

The night of the accident Joseph Green, was driving a Mack tank-truck with tank-[90 Idaho 529] trailer of the appellant Sinclair Refining Company, his employer. Green had loaded the tanks with fuel from a pipe-line terminal east of Burley for transportation to the company bulk plant adjacent to and north of the highway at the place where the accident occurred. After loading the truck and trailer, Green proceeded west through Burley, and stopped at a railroad track crossing the highway. He then continued on, made a left turn to the south across the highway, and entered a parking area of the Union Seed Company, adjacent to the highway on the south. He proceeded through the parking area, and made a half circle turn to the right to cross the highway from the Union Seed Company area to the Sinclair property north of the highway. Green stopped at the Union Seed Company curb cut leading to the highway, shifted his truck into first gear, and looked for traffic coming from the east and west. He observed no cars approaching from the east, but saw two coming from the west and waited until they passed, and then started across the highway to enter the bulk plant. When Green was about halfway across the highway he saw a car driven by Cecil Matlock approaching from the east, in the westbound half of the highway. This car slowed down and stopped in the inside lane fifty feet east of the truck and trailer. Green continued driving the truck across the highway and when the truck itself was inside the west gate of the bulk plant, with the trailer crossing the westbound lanes, Green saw another car rapidly approaching from the east. This car was driven by Joseph Dale Durham; in it respondents' daughter was riding.

On the evening of the accident Durham had been 'dragging' Main Street, which term was used in the vernacular, meaning two cars racing from a stop. Just prior to

Page 447

the accident Durham was driving west on the highway to take some of the occupants of his car to work in plants west of Burley. Durham was driving in the outside west bound lane, and at the same time another car driven by Arthur Ramsey, was driving along the inside west bound lane and beside the Durham car, with the occupants of the two cars talking back and forth. Everett Mounce observed these two cars driving along together as they passed the intersection of Occidental Avenue and Main Street, (which intersection was about 690 feet east of the point of the accident). Mounce, at the time he observed the cars was stopped on Occidental Avenue at its intersection with Main Street.

Both the Ramsey and Durham vehicles continued west about even with each other. When they neared the Matlock vehicle, stopped in the inside lane some 50 feet east of the truck and trailer, the Ramsey vehicle turned to the left to miss the Matlock vehicle, and the Durham vehicle continued straight in the outside lane until [90 Idaho 530] just a few feet from the trailer, when it truned to the left, and struck the right rear dual wheels of the trailer which was in the inside lane of the west bound traffic. When the Durham car hit the right rear dual wheels, it sheared the bolts from the trailer chassis and drove the dual wheels out from underneath the rear end of the tank-trailer.

The trial court found that appellant Green at the time he started across the highway had about six hundred ninety feet visibility along the highway to the east. The trial court also found that the crossing could be accomplished by the truck in twenty seconds, and that a driver proceeding west on the highway driving thirty-five miles per hour requires only 13.44 seconds to travel the distance from the point of eastern most visibility to the point of the accident. The trial court concluded that the appellants were negligent and their negligence was the proximate cause of the accident and death of respondents' daughter.

Appellants have assigned as error the finding by the trial court that visibility was only 690 feet to the east, asserting the evidence shows visibility was 850 feet, and also that the court erred in its finding that it was impossible for appellants truck and trailer to cross the highway in the time it takes westbound traffic not visible to the driver of the truck and trailer, approaching and travelling within the legal speed limit to reach the crossing point.

Green testified that he could see westbound traffic from the east as far as Occidental Avenue. Detective Higens of the Burley police department testified that from the Union Seed Company curb cut to the center of Occidental Avenue was 690 feet. Higens also testified that he had measured the distance from the curb cut of the Union Seed Company to the most distant point visible to the east of the oustide lane for westbound traffic, which point was at the west end of Shelley Processing Plant, and that distance was 850 feet. Officer Wright of the Burley police department in his testimony fully corroborated Higens' testimony in regard to the distance a person could see down the highway to the east from the Union Seed Company curb cut.

The trial court in remarks at the close of the case stated: 'I further find that visibility for westbound traffic in the area of the point of impact extends at least to Occidental Avenue and perhaps to the east for another one or two hundred feet.' The trial court in a written opinion stated: 'Simple arithmetic establishes that a driver going west at thirty-five miles per hour takes only 13.44 seconds to travel the distance from the point of easternmost visibility to the crossing point.' It is established that a vehicle traveling at thirty-five miles per hour traverses 51.33 feet per second, and from that it is evident the trial court in its opinion considered 690 feet as the most easterly distance appellant Green could see [90 Idaho 531] down the highway to the east. Nevertheless the trial court's finding was that appellant Green could see only 690 feet to the east.

Page 448

The trial court in reaching the conclusion of law that respondents were negligent relied upon the cases of Sandberg v. Spoelstra, 46 Wash.2d 776, 285 P.2d 564 (1955) and Kerlik v. Jerke, 56 Wash.2d 575, 354 P.2d 702 (1960). In the Sandberg case the Washington Supreme Court stated:

'Plaintiff's driver had a right to take the truck and trailer back onto the highway from the parking place on the private driveway, but in leaving such parking place it was his duty: (1) to bring his vehicle to a full stop at a point where, before entering the highway, he could see traffic approaching from either direction; (2) to look in both directions and observe traffic conditions; (3) to yield the right of way to all vehicles upon the highway; and (4) to adopt such additional precautions as may have been necessary to assure a reasonable margin of safety under the existing circumstances.' 285 P.2d at 566.

In that case the plaintiff truck driver was leaving a private driveway and entering a highway at a point 375 feet from a blind curve, and as he was entering the highway another truck came around the curve and there was a collision. The action was brought by plaintiff for damages to his truck, and the defendants cross-claimed for damages to their truck. The trial court dismissed both the complaint and cross-complaint. The Supreme Court of Washington upheld the trial court's judgment that the plaintiff's driver was negligent in entering the highway at a point where he did not have sufficient visibility to assure him that he could proceed across the highway without interference, and that such negligence was a proximate cause of the accident.

Kerlik v. Jerke, 56 Wash.2d 575, 354 P.2d 702 (1960), was an action for damages sustained when the plaintiff's automobile traveling on an arterial highway, struck defendants' automobile while it was attempting to enter the highway from a private parking area. The defendant driver was held negligent as a matter of law in failing to stop and observe the highway from a point where traffic could be seen. The court relied upon and quoted from Sandberg v. Spoelstra, supra.

Two statutes involves in this action are:

I.C. § 49-730: 'The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on said highway.'

I.C. § 49-521(a): "Right of way.'-The privilege of the immediate use of the roadway.'

The facts are without dispute that Green stopped at...

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