Schaub v. Linehan

• Decision Date: 09 July 1968
• Docket Number: No. 10065,10065
• Citation: 442 P.2d 742,92 Idaho 332
• Parties: Alex G. SCHAUB and lrene Schaub, husband and wife, Plaintiffs-Appellants, v. John A. LINEHAN, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 742

442 P.2d 742

92 Idaho 332

Alex G. SCHAUB and lrene Schaub, husband and wife, Plaintiffs-Appellants, v. John A. LINEHAN, Defendant-Respondent.

No. 10065.

Supreme Court of Idaho.

July 9, 1968.

Paul C. Keeton and Donald K. Worden, Jr., Lewiston, for plaintiffs-appellants.

E. L. Miller, Coeur d'Alene, for defendant-respondent.

SMITH, Chief Justice.

Appellants by this action seek recovery of damages for personal injuries which appellant Irene Schaub suffered, and of damages to ther boat. The damages arose from a boat cllision which occurred August 14, 1965, on Lake Chatcolet in Benewah County, Idaho.

Appellants, residents of Nez Perce County, Idaho, had owned a cabin at Lake Chatcolet for approximately fifteen years preceding the boat accident. They also own a Sabre Craft inboard-outboard motorboat powered by a Volvo 80 h. p. motor, acquired in 1961.

August 14, 1965, appellant Alex Schaub journeyed from Lewiston, Idaho, to Lake Chatcolet to stay with his wife, who was already at the cabin. During the afternoon of the day, which was sunny and bright, the Schaubs spent some time cleaning their boat, and then decided to go for a boat ride on the lake.

At the time of the accident, about 5:30 p. m., the Schaub boat had just left a restricted speed area on the lake, and was proceeding at approximately five miles perhour. According to Mr. Schaub, the Schaubs noticed a boat approaching from their right in a circular pattern at high speed. Mr. Schaub turned his boat to the left to avoid a collision, and had succeeded in turning approximately ten degrees when the approaching boat struck the Schaub boat squarely in midsection.

The force of the blow dislodged the seat upon which Mrs. Schaub was sitting, and knocked her to the bottom of the boat. She thereby sustained several broken ribs and multiple bruises.

In addition to the dislodged seat, there was a severe break in the right side midsection front deck of the Schaub boat; there was a severe break several feet long above the water line on the right side; a side window was broken, and a forward bulkhead was broken loose from the hull and from the bottom of the boat. Repair bills for damage to the boat totaled $480.00.

The colliding boat was owned and operated by respondent Linehan, who had been engaged in towing water skiers on the day in question. At the time of the accident, Linehan was operating the boat from the right front seat, with Mrs. Linehan occupying the forward lefthand passenger seat; a daughter, Marilyn, and a neighbor girl occupied the back seats.

A floating ski dock, constructed and maintained by the Waterways Commission of the State of Idaho, was anchored some five hundred yards from the western shoreline of Lake Chatcolet. Respondent Linehan testified that he had approached the dock going from north to south on the lake but was unable to drop his son, whom he was towing. He then went on by the dock, traveling south down the lake, and then turned north again and dropped his son at the ski dock. Respondent then apparently turned his head back to observe his son, as he, respondent, was executing a westerly left hand turn into the sun, and discovered too late the Schaub boat in his path. Respondent testified that he was going ten miles per hour at the time of the collision, and that the 'blinding sun caught on the windshield of the boat' immediately prior to the collision so that he 'couldn't see a thing.' Appellants individually testified that they noticed that all of the occupants of the approaching boat were looking backward prior to and up to the time of the collision.

The day was clear and respondent and his wife were wearing sunglasses at the time of the accident. The lake was heavily congested with boats when the accident occurred. Both parties were fully aware of the location of the ski dock, and of the use of that part of the lake for water-skiing purposes.

Appellants alleged specific acts of negligence on the part of respondent in the operation of his boat, i. e., in operating the boat without keeping a proper lookout, without due care and circumspection, and at an unreasonably high rate of speed under the existing conditions; also in looking back at the water skier while operating the boat in the opposite direction. Respondent generally alleged the affirmative defense of contributory negligence on the part of appellants in operating their boat.

A trial by jury resulted in a verdict followed by judgment in favor of respondent. Appellants have appealed from the judgment and from an order denying their motion for a new trial.

Appellants assign as error the trial court's instruction to the jury concerning unavoidability ability of the accident. They allege that such instruction is not proper 'where the issues are properly covered by ordinary instructions on negligence and contributory negligence,' and they maintain that the theory of accidental injury was already covered by certain other instructions ¹ so that the giving of the instruction on unavoidable avoidable accident tended prejudicially to overemphasize the defendant's theory of the case.

Instruction No. 31, reads as follows:

'If you find from the evidence that the accident was unavoidable, then no party can recover damages.

'An unavoidable accident is one happening suddenly and unexpectedly and without negligence on the part of any one.'

An unavoidable accident is generally defined as an occurrence which is not contributed to by the negligent act or omission of either party or which is not proximately mately caused by the negligence of any person. See Murphy v. Read, 157 Or. 487, 491, 72 P.2d 935 (1937); Knox v. Barnard, 181 Kan. 943, 317 P.2d 452 (1957); Stein v. Louisville Water Co., 249 S.W.2d 750 (Ky. (1952); Kelly v. Employers Casualty Co., 202 Okl. 437, 214 P.2d 925, 929 (1950); Jacobsen v. McGinness, 135 Colo. 357, 311 P.2d 696 (1957); 65 C.J.S. Negligence § 21, p. 648. It is such an occurrence as, under all the circumstances, could not have been foreseen or avoided in the exercise of ordinary care. Beliak v. Plants, 84 Ariz. 211, 326 P.2d 36 (1658); Sullivan v. Fanestiel, 229 Ark. 662, 317 S.W.2d 713 (1958); Hodgson v. Pohl, 16 N.J.Super. 87, 83 A.2d 783, 786, affirmed 9 N.J. 488, 89 A.2d 24 (1952); Hart v. Jackson, 142 So.2d 326, 328 (Fla.App.1962); Chicago, Rock Island & Pacific R. Co. v. Goodson, 242 F.2d 203 (5th Cir. 1957).

We have often said that the determination whether in a specific instance the probable effect of an instruction on unavoidable accident was to mislead the jury, and whether the error was prejudicial so as to require reversal, depends on the circumstances of the case, including the evidence and other instructions given. See Hackworth v. Davis, 87 Idaho 98, 390 P.2d 422 (1964); Morford v. Brown, 85 Idaho 480, 381 P.2d 45 (1963); Lallatin v. Terry, 81 Idaho 238, 249, 340 P.2d 112 (1959); Turner v. Purdum, 77 Idaho 130, 141, 289 P.2d 608, 613 (1955).

We have not had occasion to determine, and have not found authority from other jurisdictions indicating whether an unavoidable accident instruction has ever been appropriate to factual circumstances similar to those in the case at bar. In the instant action, however, we find it inconceivable that the accident as occurred could have happened without negligence on the part of either party, or that the accident could not have been foreseen or prevented in the exercise of ordinary care.

The instruction on unavoidable accident was potentially confusing and misleading to the jury, both because of its inapplicability to the factual situation and because of its tendency, considering the other instruction given, for overemphasizing respondent's case. See Hackworth v. Davis, supra; Butigan v. Yellow Cab Company, 49 Cal.2d 652, 320 P.2d 500, 65 A.L.R.2d 1 (1958); Annot. 65 A.L.R.2d 12; Kelly v. Hanwick, 228 Ala. 336, 153 So. 269, 275 (1934); Graham v. Rolandson, 435 P.2d 263 (Mont.1967); O'Donnell v. Maves 103 Ariz. 28, 436 P.2d 577 (1968); Annot 65 A.L.R.2d, supra. Accordingly, we hold that the submission to the jury of the instruction on unavoidable accident constituted prejudicial error.

The propriety of unavoidable accident instructions has given most appellate courts much concern. See 65 A.L.R.2d 20. Jurisdictions in growing numbers, particularly in recent years, have come to look upon such instructions with disfavor, and to rule that their inclusion in jury charges constitutes reversible error per se. See Graham v. Rolandson, supra; O'Donnell v. Maves, supra; Butigan v. Yellow Cab Company, supra; Fenton v. Aleshire, 238 Or. 24, 393 P.2d 217, 222 (1964); Lewis v. Buckskin Joe's, Inc., 156 Colo. 46, 396 P.2d 933 (1964). See also Carey v. Toles, 7 Mich.App. 195, 151 N.W.2d 396 (1967); Herrington v. Pechin, 198 Kan. 431, 424 P.2d 624 (1967); Oklahoma Tire & Supply Co. v. Bass, 240 Ark. 496, 401 S.W.2d 35 (1966); Camaras v. Moran, 219 A.2d 487 (R.I. 1966); City of Phoenix v. Camfield, 97 Ariz, 316, 400 P.2d 115 (1965); Vespe v. DiMarco, 43 N.J. 430, 204 A.2d 874 (1964). Compare Wong v. Swier, 267 F.2d 749 (9th Cir. 1959); Franco v. Fujimoto, 47 Haw. 408, 390 P.2d 740 (1964); Guanzon v. Kalamau, 48 Haw. 330, 402 P.2d 289 (1965); Grubb v. Wolfe, 75 N.M. 601, 408 P.2d 756 (1965); Flaks v. McCurdy, 64 Wash.2d 49, 390 P.2d 545 (1964); Woodhouse v. Johnson, 20 Utah 2d 210, 436 P.2d 442 (1968); Porter v. Price, 11 Utah 2d 80, 355 P.2d 66 (1960).

The Supreme Court of California, in Butigan v. Yellow Cab Company, supra, stated:

'In the modern negligence action the plaintiff must prove that the injury complained of was proximately caused by the defendant's negligence, and the defendant under a general denial may show any circumstance which militates against his negligence or its causal effect. The socalled defense of inevitable accident is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury. * * * The...