Smith v. Sharp

• Decision Date: 23 June 1960
• Docket Number: 8846,Nos. 8842,s. 8842
• Citation: 82 Idaho 420,354 P.2d 172
• Parties: Don C. SMITH and Allce V. Smith, husband and wife, Plaintiffs-Appellants, v. Merrill Kim SHARP, Merrill J. Sharp and City of Pocatello, a Municipal Corporation, Defendants and Respondents. George L. STONE and Elvera Stone, husband and wife, Plaintiffs-Appellants, v. Merrill Kim SHARP, Merrill J. Sharp and Merrill Kim Sharp by Merrill J. Sharp, Guardian ad litem, and City of Pocatello, a Municipal Corporation, Defendants and Respondents.
• Court: Idaho Supreme Court

Page 172

354 P.2d 172

82 Idaho 420

Don C. SMITH and Allce V. Smith, husband and wife, Plaintiffs-Appellants, v. Merrill Kim SHARP, Merrill J. Sharp and City of Pocatello, a Municipal Corporation, Defendants and Respondents.

George L. STONE and Elvera Stone, husband and wife, Plaintiffs-Appellants, v. Merrill Kim SHARP, Merrill J. Sharp and Merrill Kim Sharp by Merrill J. Sharp, Guardian ad litem, and City of Pocatello, a Municipal Corporation, Defendants and Respondents.

Nos. 8842, 8846.

Supreme Court of Idaho.

June 23, 1960.

Rehearing Denied Aug. 2, 1960.

Mark B. Clark and Louis F. Racine, Jr., Pocatello, for appellants Smith.

O. R. Baum, Ben Peterson, and Ruby Y. Brown, Pocatello, for appellants Stone.

Merrill & Merrill, Pocatello, for defendants Sharp.

Gerald W. Olson and Milton E. Zener, Pocatello, for City of Pocatello.

TAYLOR, Chief Justice.

These actions were brought by the respective parents (appellants) of Marilee Smith and Verda Mae Stone, teen-age girls, who were drowned in the Portneuf river in the defendant (respondent) City of Pocatello, when the car in which they were passengers went through the barrier at the dead end of South Hayes street and plunged into the river, at about 9:40 p. m., February 10, 1958.

The car was driven by defendant Merrill Kim Sharp. The allegations of negligence in the two complaints are the same, and in the Stone case are set out as follows:

'That at said time and place the defendant, Merrill Kim Sharp, operated and drove his said automobile recklessly, negligently, and unlawfully and with a reckless disregard for the safety of the occupants of said automobile, and particularly Verda Mae Stone, deceased, in that said defendant operated the vehicle at an excessive rate of speed, to-wit: In excess of 25 miles per hour, in the nighttime, without lights, and without keeping any lookout whatsoever as to the roadway ahead, and without maintaining any control whatsoever of the vehicle, and in such manner as to drive his car into a steel post barricade between South Hayes Street and the Portneuf River and to so bend said posts as to cause the car to proceed through the posts and into the Portneuf River. That at said time and place, the defendant, Merrill Kim Sharp, deliberately and intentionally operated the vehicle at an excessive speed and without lights.

'That the defendant, City of Pocatello, was negligent and careless in that in the supervision and control of the streets and particularly its control of South Hayes Street at the point where South Hayes Street met with the Portneuf River, the City of Pocatello, on February 10, 1958, wholly failed to place or maintain any proper barriers and lighting, which would constitute a sufficient warning to the traveling public, and particularly Verda Mae Stone, deceased. That said South Hayes Street at the point where it meets the river is a dead-end street and that the metal posts which the City of Pocatello maintained between South Hayes Street and the Portneuf River were not equipped with reflectors of any type or kind, or any other device to appraise people traveling said South Hayes Street, and particularly Verda Mae Stone, deceased, that the street was a dead-end street and that the river was immediately in front of the end of the street. That, in fact, said method of maintaining South Hayes Street at the location described was in the nighttime a trap to the traveling public for the reason that across the river the traveling public could see a street continuing, as well as street lights, and one traveling on South Hayes Street in a northerly direction would be unable by reason of the lack of safeguards maintained by the City of Pocatello to know and determine that the street ended at the river. That the City of Pocatello, furthermore, was negligent and careless in that it failed to maintain any stop signs and dead-end signs at the intersection of West Halliday and South Hayes Streets to apprise the traveling public at such intersection of the ending of South Hayes Street at the river; and failed to maintain any signs or dead-end signs at the point where South Hayes Street met the Portneuf River.'

The trial court sustained general demurrers and dismissed the actions as to the defendant City of Pocatello. From judgments of dismissal plaintiffs appeal.

The issue presented is whether or not the facts pleaded are sufficient to present a jury question as to the liability of the city; that is, whether or not the alleged negligence of the city was a proximate cause of the deaths of plaintiffs' decedents. The fundamental duty of the city in the premises is imposed by I.C. § 50-1141, which provides:

'The city councils of cities and boards of trustees of villages shall have the care, supervision and control of all public highways, bridges, streets, alleys, public squares and commons within the corporate limits, and shall cause the same to be kept open and in repair and free from nuisances: * * *.'

In Carson v. City of Genesee, 9 Idaho 244, 74 P. 862, 864, this court construed the duty imposed by the statute to require municipal corporations to keep the streets within their limits 'in a reasonably safe condition for use by travelers in the usual modes.' That rule has continued to be the rule in this jurisdiction. Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850; Hendrix v. City of Twin Falls, 54 Idaho 130, 29 P.2d 352; Pearson v. Boise City, 80 Idaho 494, 333 P.2d 998.

Arising out of this basic duty and as a corollary thereof, it is the duty of a municipality to erect and maintain barriers or warning devices, where necessary to make the street reasonably safe for travelers using ordinary care, and at such places as would be unsafe for usual and ordinary travel without such barriers or warning devices. Pardini v. City of Reno, 50 Nev. 392, 263 P. 768; City of Phoenix v. Mayfield, 41 Ariz. 537, 20 P.2d 296; City of Seminole v. Mooring, 185 Okl. 359, 91 P.2d 1091.

Nothing appears in either complaint to indicate a relationship between the deceased girls and the driver Sharp, by reason of which the negligence of Sharp could be imputed to them. The city does not contend that the negligence of Sharp is imputable to plaintiffs' decedents. However, the municipality is not an insurer of the safety of travelers upon its streets. Miller v. Village of Mullan, 17 Idaho 28, 104 P. 660, 19 Ann.Cas. 1107; Davison v. Snohomish County, 149 Wash. 109, 270 P. 422; Yocum v. Town of Bloomsburg, 289 Pa. 512, 137 A. 668; Haney v. Town of Lincolnton, 207 N.C. 282, 176 S.E. 573; 5 A Blashfield Cyclopedia of Automobile Law & Practice, § 3192. The statute as above construed requires only that it exercise reasonable and ordinary care to keep its streets in a reasonably safe condition for ordinary travel. Miller v. Village of Mullan, supra; Smith v. City of Rexburg, 24 Idaho 176, 132 P. 1153, Ann.Cas.1915B, 276.

Negligence, to be actionable, must be the proximate cause, or a contributing proximate cause, of plaintiff's injury. Chatterton v. Pocatello Post, 70 Idaho 480, 223 P.2d 389, 20 A.L.R.2d 783; Clark v. Chrishop, 72 Idaho 340, 241 P.2d 171.

Where negligent acts of two or more persons combine to cause injury to another under circumstances such that the negligence of each becomes proximate cause of the injury, the tort-feasors may become jointly and severally liable to the injured party. Valles v. Union Pac. R. Co., 72 Idaho 231, 238 P.2d 1154; Clark v. Tarr, 75 Idaho 251, 270 P.2d 1016; Russell v. City of Idaho Falls, 78 Idaho 466, 305 P.2d 740; Hoffman v. Barker, 79 Idaho 339, 317 P.2d 335; Tobin v. City of Seattle, 127 Wash. 664, 221 P. 583; United States v. Marshall, 9 Cir., 230 F.2d 183.

'Ordinarily, the proximate cause of an injury is a question of fact for the jury or the court as trier of the facts. Ford v. Connell, 69 Idaho 183, 204 P.2d 1019; Mason v. Hillsdale Highway Dist., 65 Idaho 833, 154 P.2d 490; but in the absence of evidence showing or tending to show a causal connection between defendant's negligence and plaintiff's injury, defendant, as a matter of law, cannot be charged with liability. Chatterton v. Pocatello Post, supra.' Clark v. Chrishop, 72 Idaho 340, at page 344, 241 P.2d 171, at page 173.

Where the facts established, or undisputed, and the inferences to be drawn therefrom, are such as to preclude reasonable doubt or difference of opinion, the question of proximate cause becomes one of law for the court. Bracy v. Lund, 197 Wash. 188, 84 P.2d 670; Cook v. Seidenverg, 36 Wash.2d 256, 217 P.2d 799; United States v. Marshall, supra.

It is the position of the defendant city that, assuming the complaints sufficient to charge negligence on the part of the city, such negligence was not the proximate cause of the accident, and that the negligence of Sharp was such active, intervening negligence as to become the superseding proximate cause of the injury.

Proximate cause is defined as the 'cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred.' 65 C.J.S. Negligence § 103, p. 645.

"It may be stated as a general rule that negligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion the agency by which the injuries are inflicted is not the proximate cause thereof. 38 Am.Jur. 702." Clark v. Chrishop, 72 Idaho 340, at pages 342-343, 241 P.2d 171, at page 172.

'There can be no liability for an act of negligence except where such act is the proximate cause, and where an intervening act of force is put in motion by another, and for which defendant is not responsible, there can be no recovery.' Chatterton v. Pocatello Post, 70 Idaho 480, 484, 223 P.2d 389, 391, 20 A.L.R.2d 783.

'A superseding cause is an act of third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent...