Riley v. Larson

• Decision Date: 20 October 1967
• Docket Number: No. 9927,9927
• Citation: 91 Idaho 831,42 A.L.R.3d 1274,432 P.2d 775
• Parties: , 42 A.L.R.3d 1274 Lloyd V. RILEY and Ellen Riley, husband and wife, Plaintiffs-Respondents, v. Joseph Val LARSON and Lionel Jensen dba Wheatley and Jensen Texaco, Defendants-Appellants, and Newell J. Neibaur, Defendant.
• Court: Idaho Supreme Court

Page 775

432 P.2d 775

91 Idaho 831, 42 A.L.R.3d 1274

Lloyd V. RILEY and Ellen Riley, husband and wife, Plaintiffs-Respondents, v. Joseph Val LARSON and Lionel Jensen dba Wheatley and Jensen Texaco, Defendants-Appellants and Newell J. Neibaur, Defendant.

No. 9927.

Supreme Court of Idaho.

Oct. 20, 1967.

Merrill & Merrill, Pocatello, for appellants.

Clark & Lyon, Pocatello, for respondents.

SPEAR, Justice.

By this action, plaintiffs-respondents seek to recover for personal injuries to respondent Ellen Riley and for damages to the Rileys' automobile resulting from a collision with another auto.

While driving her automobile in an easterly direction on Cedar Street in the City of Pocatello, Mrs. Riley collided with another automobile which was traveling in a northwesterly direction. At the time of the accident, which occurred about 11:30 a. m. to 12:00 o'clock noon on the 3rd of June, 1964, no one was in the car that struck Mrs. Riley. The collision took place approximately fifteen minutes after appellant Larson had parked the car on the north side of the Wheatley and Jensen Texaco station, facing in a westerly direction. Before leaving the car unattended, Larson had set the gear in 'reverse,' instead of 'park,' and he failed to set the hand brake and turn the front wheels away from traffic as prescribed by IC. § 49-759.

Trial was had before the court sitting without a jury and judgment was entered in favor of the plaintiffs. The trial court found and concluded that (1) damage to plaintiffs' car was in the sum of $350.00; (2) the collision was proximately caused by the negligence of defendant Larson in not setting the hand brake as required under the provisions of IC. § 49-759 for parking a vehicle and failing to put the gears in 'park' position; (3) no contributory negligence of Ellen Riley was established by the evidence; (4) plaintiff Ellen Riley suffered permanent damages (personal injuries) by reason of said accident; and (5) that plaintiffs were entitled to a judgment against defendants, jointly and severally, in ths sum of $17,500 general damages and $1,455.26 special damages.

This is an appeal from that judgment appellants assigning error to each of the major findings and conclusions hereinbefore set out. To properly pass upon each assignment of error it is first necessary to consider the evidence in some detail.

(A) NEGLIGENCE OF DEFENDANTS LARSON AND JENSEN

On the day of the accident, June 3, 1964, defendant Larson, who was working for Jensen, doing business under the trade name and style of the Wheatley and Jensen Texaco Station, picked up a 1960 Buick automobile owned by Newell J. Neibaur and brought it back to the station which is located at the corner of Cedar and Yellowstone Streets in Pocatello. After the car was serviced, defendant Larson then parked it on a slight incline next to the north side of the building, facing toward the west.

The Buick had an automatic transmission with a 'park' setting. Larson testified that he had turned the key off and shifted the gear into 'reverse,' not 'park,' but that he had neither set the hand brake nor turned the wheels away from the traffic. He did not actually see the Buick roll out into the street, but estimated that a time of fifteen minutes had elapsed before the car was involved in the accident.

It is well settled in Idaho that violation of a statutory inhibition is negligence per se. State ex rel. McKinney v. Richardson, 76 Idaho 9, 277 P.2d 272 (1954). I.C. § 49-759, dealing with the operation of motor vehicles-rules of the road-provides:

'Unattended motor vehicle-No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key, and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highways.'

It is evident that the purpose of this statute is to provide against a motor vehicle becoming a derelict on the road and the dangers attendant thereon. Failure on the part of one to comply with the statutory requirement of setting the brake and turning the wheels away from traffic renders that person prima facie liable for the consequences which the statute was intended to prevent. The undisputed evidence here shows that the Neibaur automobile did become a derelict and a menace to traffic. See Rozner v. Harrell Drilling Company, Tex.Civ.App., 264 S.W.2d 190 (1953).

Moreover, under a similar statute, the court in McCoy v. Courtney, 25 Wash.2d 956, 172 P.2d 596, 170 A.L.R. 603 (1946), noted that such a statute does not require the operator to put the car in gear, nor does such a precaution meet the requirements of the statute.

Appellants stress the fact that since the Buick was held in place for some fifteen minutes, there must have been some outside force or other agency thatacted outside force or other agency that acted position. They rely on the case of Hughes v. Jolliffe, 50 Wash.2d 554, 313 P.2d 678 (1957), in which a car was parked on a slight incline for over an hour with the automatic gearshift locked in park before it began to roll backwards. After the accident, the gearshift lever was found to be in neutral. The court there rejected the doctrine of res ipsa loguitur as the basis for negligence on the grounds that the car had remained in position for a 'substantial length of time' and that no evidence was adduced as to who who or what shifted the gears into neutral.

While the length of time in which the car remained parked before starting is an element not to be ignored (see cases cited in 16 A.L.R.2d 979, at 993), we are not impressed that under the circumstances of this case it is conclusive in appellants' favor.

In the first place, the time lapse of fifteen mimutes was only an approximation and not definite; but in any event we take the view that fifteen mimutes is not so substantial a length of time that, as a matter of law, this court is compelled to hold defendants' initial negligence no longer could serve as the proximate cause for the Buick's rolling onto the thoroughfare and causing the accident.

Secondly, defendant Larson admitted that he did not put the automatic gearshift into the 'park' position, nor was there any proof offered to show that the gearshift had not at all times remained in the reverse setting.

Thirdly, the Neibaur car being parked upon a grade from the service station, the defendant Larson should have turned the front wheels of the car away from the oncoming traffic as prescribed by the statute. It was the duty of defendant Larson to set the hand brake and turn the wheels away from traffic so that this sort of accident would not happen. Under these circumstances, we cannot say that the trial court's finding of proximate cause from the occurrence of the accident was unwarranted where no other evidence was offered to explain the cause of the collision. See Pelland v. D'Allesandro, 321 Mass. 387, 73 N.E.2d 590 (1947); Hasselman v. Zimmerman, 2 Wis.2d 345, 86 N.W.2d 418 (1957).

(B) CONTRIBUTORY ENGLIGENCE OF MRS. RILEY

In this respect factual details of the accident are not disputed as the only eyewitnesses were the occupants of the Riley automobile, namely, Mrs. Riley and her yound daughter.

The facts are that Mrs. Riley was proceeding east along Cedar Street at a speed not in excess of twenty miles per hour as she was approaching the traffic signal at the intersection of Yellowstone and Cedar. She was in the process of slowing down, of actually applying her brakes, in anticipation of the red traffic light approximately one hundred and forty feet in front of her. Mrs. Riley testified that at that moment she saw a car approaching on her right, as it entered the traffic traveling at a 'normal rate of speed' and 'in a normal manner.' She first observed this car when it was perhaps some sixteen to twenty feet away but stated that she couldn't see whether anyone was in the car as the sun was reflecting on the windshield and obscuring her view. As to what happened immediately thereafter, Mrs. Riley testified as follows:

'Q. So then what did you do?

'A. I proceeded in a normal manner; I looked in my rear view mirror to see the traffic behind me, and then I realized the car didn't appear to be slowing down, and I honked politely and then I honked rather intensively, and then I just put my hand on the horn and honked continually when I realized the car wasn't going to stop.

'Q. Did you get out of the way then?

'A. I couldn't go anywhere; there was no place to go.

'Q. Why was this?

'A. Well, the car was coming at me from the right, and there was traffic on the left and traffic in front of me, and traffic behind me. I applied the brakes. I didn't realize until the car was perhaps five or six feet away from me that it was going to,-that it wasn't going to stop.'

Under cross-examination, Mrs. Riley testified that only when she first realized the Buick wasn't going to stop did she apply her brakes to stop. At that time she realized she was going to be hit before the actual impact and braced herself. She did not realize there was no driver in the Buick until she actually got out of her car and walked up beside the Buick.

Appellants contend that this testimony establishes contributory negligence by Mrs. Riley as a matter of law and precludes any recovery by the respondents.

The burden of proof of the affirmative defense of contributory negligence is upon the party pleading such defense, unless it appears from the evidence introduced by plaintiff. I.R.C.P. 8(c); Larsen v. Jerome Cooperative Creamery, 76 Idaho 439, 283 P.2d 1096 (1955); Bell v. Carlson, 75 Idaho 193, 270 P.2d 420 (1954)...