Smith v. Sharp

• Decision Date: 12 October 1962
• Docket Number: No. 9094,9094
• Citation: 375 P.2d 184,85 Idaho 17
• Parties: Don C. SMITH and Alice V. Smith, husband and wife, Plaintiffs-Respondents, v. Merrill Kim SHARP, Merrill J. Sharp and Merrill Kim Sharp by Merrill J. Sharp, Guardian ad litem, Defendants-Appellants, and City of Pocatello, a municipal corporation, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 184

375 P.2d 184

85 Idaho 17

Don C. SMITH and Alice V. Smith, husband and wife, Plaintiffs-Respondents, v. Merrill Kim SHARP, Merrill J. Sharp and Merrill Kim Sharp by Merrill J. Sharp, Guardian ad litem, Defendants-Appellants, and City of Pocatello, a municipal corporation, Defendant-Respondent.

No. 9094.

Supreme Court of Idaho.

Oct. 12, 1962.

Merrill & Merrill and Gee & Hargraves, Pocatello, for appellants.

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

Louis F. Racine, Jr., Robert C. Huntley, Jr., and Mark B. Clark, Pocatello, for respondents Smith.

McQUADE, Justice.

This appeal is taken from a judgment in favor of respondents for the death of their daughter, Marilee Smith. She was drowned when the car in which she was a guest was driven through a barrier at the terminus of a dead-end street and then into the Portneuf river within the city of Pocatello, Idaho, at about 9:40 p. m., February 10, 1958. Appellant Merrill Kim Sharp (referred to herein as Kim Sharp), driver of the automobile, was transporting a group of young people to their various homes after a church meeting. One of the passengers, Gay Mizera, lived in an area with which appellant Kim Sharp was unfamiliar. The Sharp automobile was a 1951 Oldsmobile 2-door sedan, equipped with twin tail pipes and Hollywood deeptone mufflers. With Kim Sharp in the front seat were Lynn Evenson and Lamona Webster. Seated in the rear were Gwenna Woodward, Marilee Smith, Gay Mizera, Verda Stone and Bill Clark.

Kim Sharp, proceeding west on West Halliday street in Pocatello, crossed a bridge over the Portneuf river to South Hayes at which intersection he turned left in a southerly direction on South Hayes. Halliday street extends east and west and South Hayes north and south. All portions of these streets are paved except that portion of South Hayes to the north of the intersection, which traverses a distance of approximately 173 feet to a barrier. At this point the river bisects South Hayes. South Hayes continues on the opposite side of the river in a northerly direction. The distance from the barrier to the river edge is 12 feet. Halliday street is paralleled by two drainage depressions at the intersection. The drainage depression on the southerly side of Halliday is 1/10th of a foot lower than the elevation of the center of the intersection. The drainage depression on the northerly side of Halliday street is 1 3/10ths feet lower than the center of the street and 1 foot lower than the dead-end portion of South Hayes to the north of the intersection. The paved streets are approximately 40 feet in width and the unpaved portion about 39 feet in width.

After turning to the left and southerly from Halliday onto South Hayes, the vehicle approached a small girl, Darla Palmer, who was walking in the roadway about a block away from where South Hayes intersects Carter street. Lights of the vehicle illuminated Darla Palmer. She related she became frightened by the vehicle's erratic approach and ran to the side of the road behind a truck. As defendant Kim Sharp passed she heard a vulgar, caustic remark, directed at her and which frightened her, from one of the occupants. Kim Sharp continued driving the automobile southerly to the next intersection turning left onto Idaho street and then turning left down an alley to Carter street to the home of Gay Mizera. He drove off the street between some trees in the yard of the Mizera home and let Gay out on the porch steps. After letting her out he drove back to the street westerly on Carter toward South Hayes.

In the meantime Darla Palmer had hastened home in fright and related the experience to her mother. She advised Mrs. Palmer that the car making the loud noise in the alley was the one which had caused her fright. They hurried to the family car for the purpose of pursuing the offending car to identify it by the license number thereon. Mrs. Palmer drove to the intersection of Carter and South Hayes at which point she observed Kim Sharp's car parked at the Mizera home. Parking sideways, Mrs. Palmer illuminated the car's lights brightly to read Sharp's license number. Sharp drove his vehicle to the point where Mrs. Palmer was partially obstructing the street, at which time Mrs. Palmer did read the license number. Marilee Smith in the Sharp car recognized Darla and Mrs. Palmer and so advised the other occupants. According to Mrs. Palmer, Sharp at this time placed his car in such rapid motion as to cause the tires to throw gravel, turned his automobile to the right in a northerly direction on South Hayes picking up speed as it progressed. Mrs. Palmer further testified that Sharp's car as it was moving northerly on South Hayes pulled to the wrong side of the road before reaching the Hayes-Halliday intersection, and its lights went out as though going to park, but it did not stop. She next saw it, apparently illuminated by the Halliday intersection street lights, as it hit the drainage depressions, bounced twice and disappeared into the darkness of the dead-end portion of South Hayes street.

Also, observing the motor vehicle was Mrs. Jennie Brown, who lives on the northwest corner of the Hayes-Halliday intersection. While observing the Northern Lights from her front porch Mrs. Brown heard a loud noise which sounded like an automobile muffler. She looked southerly on South Hayes toward Carter, saw Kim Sharp's car approaching at a speed faster than normal town driving, without the headlights illuminated. She observed the car for about 200 feet, heard it hitting the drainage depressions. Thereafter her view was obstructed by a tree. She turned to go into her home when she heard a crash.

Kim Sharp stated that his left knee struck the light switch shoving it forward and extinguishing the head lamps. This was caused by the occupants in the rear seat, who shifted forward when the automobile struck the first depression, pushing the folding portion of the front seat, and Sharp, forward. He related that the car was proceeding at a speed of about 20 miles per hour at the intersection of South Hayes and Halliday and that the speed of the automobile was being reduced by engine compression without the application of the brakes as it proceeded along the roadway. Someone in the back seat had yelled 'Look out!' or something to that effect just prior to the time the auto struck the first depression. Kim Sharp testified that the depression did not cause him to lose control of the car, and that his brakes were in good operating condition. The distance from the last depression to the barrier was 173 feet. Sharp knew his headlights were off and saw headlights and parked cars along the street in the distance and the street light in the center of the next intersection which was across and beyond the open river.

Sharp testified he believed the street continued without interruption. Although he had not been in the vicinity previously he did know that the Portneuf river flowed through the area.

The barrier protecting traffic from the river consisted of 11 aluminum painted steel posts, 6 inches in diameter and imbedded 3 to 4 feet in the ground. Sharp failed to observe brush and trees on the opposite bank of the river.

Proceeding toward him on the opposite side of the river was another motor vehicle driven by Wayne Davis which was traveling southerly on South Hayes with its headlights on. As Davis approached the dead-end portion of South Hayes from the north, he observed a set of headlights coming toward him. He noticed these lights were south from the Halliday street intersection and did not know when they were extinguished, but presumed that the automobile had turned onto Halliday street. As he proceeded toward the river from the north, he prepared to make a U-turn. While turning he observed the red glare of brake lights as the Sharp vehicle proceeded toward him from the opposite side of the river. In describing the car going into the river, Davis related that as the car went over the river bank it made a twisting motion with the rear of the car going up and over through the air and the car fell onto its top in the water. He observed that both tail lights were on while the rear of the car was in the air. The car rested momentarily on the water before it sank.

Sharp testified that he applied the brakes on the car just before going into the river when he noticed some weeds along the side of the road. Kim Sharp and Lynn Evenson escaped through an open window of the car and although Sharp, Evenson and Davis attempted to assist the other occupants from the car, they were unsuccessful.

At the conclusion of plaintiffs' evidence, the defendants made a motion for a directed verdict which was denied. At the conclution of defendants' case the motion for directed verdict was again presented and denied by the court. Thereafter the case was submitted to the jury and verdict rendered in favor of plaintiffs and against the defendants Sharp. The jury found in favor of the City of Pocatello, and against the plaintiffs.

This appeal is from the judgment on the verdict, and the orders denying a motion for new trial and motion for judgment notwithstanding the verdict. These motions made by the defendants Sharp were not directed at the City of Pocatello, hence as to this defendant we are concerned solely with the appeal from the judgment. No error was assigned in relation to liability on part of the city; the only question presented was sufficiency and propriety of instructions. Appellants argue that if the case is reversed on appeal because of erroneous instructions the defendant city would adversely be affected. The jury was instructed:

'No. 3.

'This action involves negligence, but it is negligence of a different degree, or kind, with respect to the allegations against the defendants Merrill Kim Sharp and Merrill J. Sharp from that charged against the City of Pocatello.

'For your information, ordinary negligence may...