Schwandt v. Bates

• Decision Date: 30 November 1964
• Docket Number: No. 9318,9318
• Parties: Lynn P. SCHWANDT, Plaintiff-Appellant, v. Dwain M. BATES, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 244

397 P.2d 244

88 Idaho 131

Lynn P. SCHWANDT, Plaintiff-Appellant, v. Dwain M. BATES, Defendant-Respondent.

No. 9318.

Supreme Court of Idaho.

Nov. 30, 1964.

Paul C. Keeton, Owen L. Knowlton, Lewiston, for appellant.

Brown, Peacock & Keane, Kellogg, Daniel A. Quinlan, Lewiston, for respondent.

SMITH, Justice.

Plaintiff (appellant) seeks to recover damages for personal injuries and destruction of his pickup truck resulting from a collision of his motor vehicle with the pickup truck of defendant (respondent).

The accident occurred May 27, 1961, at about 1:30 o'clock a. m., at the intersection of Fifth Street which extends north and south and Warner Avenue which extends east and west, in Lewiston Orchards, Idaho. Other than the parties there were no eye witnesses at the scene of the accident.

Plaintiff in his complaint alleges that defendant's negligence proximately caused the collision and resultant damages. He alleges that as he entered the intersection from the north, driving south on Fifth Street, defendant, driving from the east on Warner Avenue, failed to stop before entering the intersection, although Warner Avenue was posted by a stop sign; that defendant negligently entered the intersection and stuck the left front end of plaintiff's pickup truck; that thereby plaintiff suffered damages because of personal injuries sustained necessitating medication and hospitalization, and destruction of his pickup.

Defendant by his answer denied the allegations of negligence and damage, and affirmatively alleged plaintiff's contributory negligence.

The cause was tried to a jury which returned a verdict in favor of defendant. Plaintiff appealed from the resultant judgment.

Plaintiff assigns error committed by the trial court in giving certain jury instructions relating to the last clear chance doctrine. Plaintiff asserts that the evidence adduced at the trial was insufficient to support the giving of an instruction relating to the doctrine.

In order to justify the giving of an instruction on the last clear chance doctrine there must be substantial evidence to support the giving of such an instruction. Allen v. Idaho Power Company, 84 Idaho 309, 372 P.2d 80 (1962); Hale v. Gunter, 82 Idaho 534, 356 P.2d 223 (1960); Ralph v. Union Pacific Railroad Company, 82 Idaho 240, 351 P.2d 464 (1960); Laidlaw v. Barker, 78 Idaho 67, 297 P.2d 287 (1956).

Plaintiff and defendant were the only witnesses to the accident. Both testified that the visibility was clear and the road dry. Each testified that he was operating his vehicle at a reasonable rate of speed at the scene of the collision. Plaintiff's version of events relating to the accident appears from his testimony elicited on cross-examination as follows:

'Q. Now, Mr. Schwandt [plaintiff], you were driving south on 5th Street when this accident occurred. And I understood you to say that as you approached the intersection of Warner and 5th * * * Street, that the only thing that you recall was a flash of light and this collision. Is that correct? A. Yes.

'Q. You did not observe another car before you got to the intersection?

'A. Saw them two flashes and then a vehicle hit me.

'Q. And that is all that you recall? A. Yes.'

Plaintiff testified on direct examination that the 'flash' which struck his vehicle had come from the 'east'.

Defendant, on direct and cross-examination, gave his version of the events that transpired at the time of the accident. On direct examination:

'Q. What direction were you going on Warner Street immediately prior to a collision you had * * *?

'A. Immediately prior to the collision I had stopped at the stop sign on 5th and Warner and * * * was proceeding across the center to turn south on 5th Avenue.

* * *

* * *

'Q. * * * You stopped at the stop sign and what did you do, if anything, with respect to observing traffic from either south or north?

'A. Well, I observed no traffic. I looked for traffic but * * * didn't see anything.

'Q. Did you see Mr. Schwandt's * vehicle?

'A. No.

'Q. Did you see any lights on the vehicle approaching? A. No.

* * *

* * *

'Q. * * * you did not observe his car at all?

'A. I never knew that there was another car involved, until they were taking me out of the pickup and someone made a remark that there was another car. I had seen nothing.

'Q. You knew there was a collision? A. Yes.'

On cross-examination:

'Q. * after the collision your car went 43 feet, 1 inch, according to the map, and Mr. Schwandt's vehicle went 65 feet and 4 inches, is that right?

'A. According to this map, yes.

'Q. * * * at the time of this accident his vehicle was going * * * south, * * *?

'A. I have no idea which direction his car was going. I never saw it.

* * *

* * *

'Q. Did you ever apply your brakes ahead of time of this collision?

'A. You mean after I started up from the stop sign?

'Q. Yes.

'A. I do not know. I don't remember anything after I had started up from the stop sign.

* * *

* * *

'Q. * * * Did you ever tell the Police Officer * * * at the scene of the accident * that Mr. Schwandt was driving without lights?

'A. * * * I don't know whether I did or not. I am hazy about that point.

'Q. Well, I will ask you if I served you with interrogatories * * * and I will read interrogatory number 17. 'Do you claim that Mr. Schwandt was driving his pickup truck with the head lights off immediately prior to and at the time of the collision on May 27, 1961?' To that interrogatory you answered, 'Yes.' * * *?'

* * *

* * *

'A. Not that I recall.'

In an effort to ascertain whether the last clear chance doctrine is applicable our search of the record reveals only the testimony of plaintiff to the effect that he 'saw them two flashes and then a vehicle hit me'; and defendant's testimony as regards events which may have transpired at the scene of the accident, couched in language such as, 'I never knew there was another car involved'; 'I had seen nothing'; and 'I don't remember anything after I started up from the stop sign.' Plaintiff's testimony has no reference to any time element other than the 'flashes' and then the 'hit', indicative of only a very brief moment of time between the happening of those two events,--possibly, though lacking in proof, of longer duration. Plaintiff's testimony is negative in character entirely lacking in proof of a time factor for applicability of the last clear chance doctrine.

The doctrine not only requires that the chance be the 'last' chance, but also it must be a 'clear' chance. The instructions on the doctrine should not have been given since the evidence is insufficient to warrant giving them. There is an abundance of rulings by this Court to support the conclusion we have reached in the premises. In Cournyer v. Follett, 85 Idaho 119, 376 P.2d 707 (1962), the following appears:

'Plaintiffs contention that the trial court erred when it refused to instruct the jury on the doctrine of Last Clear Chance is without merit. In Laidlaw v. Barker, 78 Idaho 67, 297 P.2d 287, this court held:

"That doctrine implies thought, appreciation, mental direction and lapse of sufficient time effectually so to act as to save another from injury to which he has negligently exposed himself. It is not applicable where the emergency is so sudden that there is no time to avert the accident.'

'Pursuant to the above rule the party seeking to rely on the doctrine of last clear chance, must show that the party charged with exercising the last clear chance had sufficient time to realize the danger, as well as an opportunity to have avoided the accident. See also Graham v. Milsap, 77 Idaho 179, 290 P.2d 744.

'* * * This Court has held that "the doctrine (of last clear chance) not only requires that the chance must be the 'last' chance, but it must also be a 'clear' chance." Allen v. Idaho Power Company, 84 Idaho 309, 372 P.2d 80; Lallatin v. Terry, 81 Idaho 238, 340 P.2d 112.

'Before the jury may be instructed on the doctrine of last clear chance there must be substantial evidence to support the doctrine. Graham v. Millsap, 77 Idaho 179, 290 P.2d 744; Allen v. Idaho Power Company, supra.'

Graham v. Milsap, supra, contains the following statements:

'We are of the opinion that under the pleadings now before us the cast clear chance doctrine could be an issue in the case if there were substantial evidence to support it. In this case there was no such evidence. McIntire v. Oregon Short Line R. Co., 56 Idaho 392, 55 P.2d 148; Ineas v. Union Pacific R. Co., 72 Idaho 390, 241 P.2d 1178. * * *

* * *

* * *

'An instruction on the last clear chance doctrine should not have been presented to the jury, even though the complaint alleges negligence of the appellant [defendant], and the answer denies it and alleges the accident was caused by the negligence of the deceased, there being no evidence to support such doctrine. * * *

* * *

* * *

'* * * The giving of the instruction on last clear chance was reversible error. [Citations].'

See also Allen v. Idaho Power Company, supra; Hale v. Gunter, supra; Ralph v. Union Pacific Railroad Company, supra; Laidlaw v. Barker, supra; Annot. 171 A.L.R. 365 (1947); Annot. 119 A.L.R. 1041 (1939); Annot. 92 A.L.R. 47 (1934); 38 Am.Jur., Negligence § 219, p. 905 (1941).

Plaintiff's assignments of error are meritorious. The trial court committed prejudicial error by instructing the jury on the last clear chance doctrine because there is no substantial evidence to support thedoctrine. Allen v. Idaho Power Company, supra.

The judgment is reversed and the cause remanded for a new trial. Costs to plaintiff-appellant.

McQUADE and TAYLOR, JJ., concur.

McFADDEN, Justice (concurring specially).

The majority opinion holds that prejudicial error was committed by the trial court in instructing the jury on the 'Last Clear Chance Doctrine' for the reason there is no substantial evidence to support the giving of such instruction. With this conclusion I concur. I wish to...