Stallinger v. Johnson

• Decision Date: 07 July 1943
• Docket Number: 7077
• Parties: GEORGE STALLINGER, Sr., and MARY STALLINGER, his wife; MARTHA STALLINGER and FRIEDA STALLINGER, Appellants, v. L. C. JOHNSON and GEORGE GAISER, as co-partners; L. C. JOHNSON, individual, and GEORGE GAISER; individual, Respondents
• Court: Idaho Supreme Court

139 P.2d 460

65 Idaho 101

GEORGE STALLINGER, Sr., and MARY STALLINGER, his wife; MARTHA STALLINGER and FRIEDA STALLINGER, Appellants, v. L. C. JOHNSON and GEORGE GAISER, as co-partners; L. C. JOHNSON, individual, and GEORGE GAISER; individual, Respondents

No. 7077

Supreme Court of Idaho

July 7, 1943

1. Appeal and error

A verdict based on conflicting evidence will not be disturbed.

2. Automobiles

In action for damages in head-on collision between automobile and truck at Y intersection, whether automobile was on its right-hand side of highway at moment of accident and motorist's speed were for jury. (I.C.A secs. 39-202, 39-203, 48-504, subds. a, b, par. 8; secs 48-518, 48-519.)

3. Negligence

Where minds of reasonable men might differ, or where different conclusions might be reached by different minds, questions as to negligence and contributory negligence are for jury.

4. Automobiles

In action for damages in head-on collision between automobile and truck at Y intersection, truck driver's negligence and motorist's contributory negligence were for jury. (I.C.A., secs. 39-202, 39-203, 48-504, subds. a, b, par. 8; secs. 48-518, 48-519.)

5. Automobiles

Where final cause immediately antecedent to collision between automobile and truck at Y intersection was the act of motorist in swerving from his own right-hand side of highway to his left-hand side, such act was the "proximate cause" of the accident.

6. Automobiles

In action for injuries in head-on collision between automobile and truck at Y intersection, instruction that truck driver's failure to stop at stop sign on entering through highway was such negligence per se as would entitle motorist and occupants of automobile to a verdict was properly refused, since under statute, driver traveling at unlawful speed forfeits any right of way, and one having right of way is not excused from exercise of ordinary care. (I.C.A., secs 39-202, 39-203, 48-504, subds. a, b, par. 8; secs. 48-518, 48-519.)

7. New trial

A motion for new trial on ground of "newly discovered evidence" was properly overruled where such evidence was similar to evidence introduced at trial and was also cumulative and contradictory.

Appeal from the District Court of the Tenth Judicial District of the State of Idaho, in and for Nez Perce County. Hon. Miles S Johnson, Judge. Action for damages. Judgment for respondent.

Affirmed.

John L. Phillips, Cox, Ware & Stellmon for appellants.

Excessive speed on a through highway is not the proximate cause of a collision where the driver of a motor vehicle entering and attempting to cross the highway from a secondary road fails to come to a stop in obedience to the stop sign thereon and fails to yield the right of way to a motor vehicle approaching the intersection on the through highway and traveling at such a rate of speed that there is no margin of safety which will enable him to clear the path of the approaching vehicle on the through highway with a reasonable degree of safety to himself and such approaching vehicle. (Gudelsky v. Boone, (Md. 1942) 23 A.2d 694 at 696; Miller v. Asbury, (Wash. 1942) 13 Wn.2d 533, 125 P.2d 652 at 654; Emanuel v. Wise, (Wash. 1941); 11 Wn.2d 198, 118 P.2d 969 at 971; Hauswirth v. Pom-Arleau, (Wash; 1941) 11 Wn.2d 354, 119 P.2d 674 at 684.)

The fact that an automobile was going at an unlawful or excessive rate of speed at the time of its collision does not bar recovery by its driver or occupants for injuries or damages sustained in the collision, or constitute negligence or want of due care, unless such violation was a proximate cause of the accident. (Sun Cab Co. v. Faulkner, (Md. 1932) 163 Md. 477, 163 A. 194; Lucas v. Andress, (La. 1931) 136 S. 207.)

Newly discovered evidence, although cumulative, warrants a new trial where it will probably change the result of the trial. (McAllister v. Bardsley, (1923) 37 Ida. 220 at 225, 215 P. 852 and 226; Flannagan v. Newberg, (1866) 1 Ida. 78; State v. Lumpkin, (1917) 31 Ida. 175, 169 P. 939; Cahill v. Stone Co., (Cal. 1914) 167 Cal. 126, 138 P. 712.)

Durham & Hyatt for respondents.

The driver on the state highway forfeits his right of way if he is traveling at an unlawful speed. (Sec. 48-518, I.C.A., and sec. 48-519, I.C.A.)

(a) These two sections must be construed together. (State v. Mead, 61 Ida; 449, at p; 453.)

By approaching the intersection of Webb road and the North and South highway at a speed in excess of 35 miles per hour, appellants forfeited the right of way they otherwise would have had by virtue of statute. (Sec. 48-519, I.C.A.; sec. 48-518, I.C.A.; Logan v. Schjeldahl, 262 N.W. 463, at pp. 464-5; Johnston v. Selfe, 190 Minn. 269, 251 N.W. 525 (Minn.) , at p. 527; Glynn v. Kripperner, 60 F.2d 406, at p. 409; Hill v. Day, 39 Del. 400, 9 W.W. Harr. 400, 199 A. 920, at p, 922; Nielsen v. Richman, 114 F.2d 343, at p. 347; Flores v. Fitzgerald, (Cal.) 204 Cal. 374, 268 P. 369. at p. 371.)

Where on the question of proximate cause men's minds may honestly differ, it should always be submitted to the jury. (Maier v. Minidoka County Motor Co., 61 Ida. 642, at p. 651, and cases cited therein; Hilliker v. Nelson, (Mich.) 269 Mich. 359, 257 N.W. 717, at p. 718.)

Cumulative evidence is not sufficient to warrant a new trial. (Livestock Credit Corp. v. Corbett, 53 Ida. 190, 22 P.2d 874.)

HOLDEN, C.J. Ailshie, Givens and Dunlap, JJ., concur. Budge, J., did not sit at the hearing or participate in the foregoing opinion.

OPINION

HOLDEN, C.J.

August 4, 1941, the Stallingers (George Stallinger, Sr., at the wheel), Mary Stallinger, his wife, Frieda and Martha Stallinger, daughters of George and Mary Stallinger, drove from, Fenn, Idaho to Lewiston, Idaho, on highway 95, generally known as the North and South highway. On the return trip, at about five o'clock in the afternoon of that day, the Stallingers approached the point where what is known as the Webb road intersects highway 95. At the same time L. C. Johnson was approaching the intersection on the Webb road, driving a truck loaded with about forty bushels of wheat. Highway 95 is an oiled, surfaced highway. A yellow center stripe marks the two traffic lanes on the highway. It runs straight for a considerable distance in a southeasterly and northwesterly direction at the point where the Webb road intersects the highway. That road intersects the highway from the west. It is marked with a "stop" sign and is what is known as a farm-to-market road and is unimproved except with macadam and gravel. Highway 95 is an arterial highway. At the intersection, traffic entering highway 95 from the Webb road divides in the form of a "Y", depending on whether the traffic is going to Culdesac to the southeast or to Sweetwater to the northwest on highway 95. The intersection does not cross highway 95. The "Y" is off the main traveled arid paved surface of highway 95. The highway is on a higher elevation than the Webb road so that in entering highway 95 from the Webb road vehicles come up onto highway 95 on a slight grade and in approaching and entering the highway have an unobstructed view of traffic in either direction for a considerable distance. The "Y" is cut deeply by trucks hauling grain to Sweetwater, so that loaded Trucks ascending the grade from the Webb road to the highway are required to shift gears. Vehicles traveling to Sweetwater enter highway 95 at an angle and cross to the right hand side at an angle. As the cars involved in the accident approached the intersection each driver saw the other when about the same distance from the intersection. The truck, driven by Johnson, but owned by Gaiser, came to what Johnson called a "rolling stop," Johnson shifted into low gear and drove onto the highway where a collision between the two cars occurred.

November 12, 1941, this action was commenced in the District Court in and for Nez Perce County to recover damages for personal injuries sustained in the collision by the Stallingers, respectively as well as for damage to the Stallinger car, driven by George Stallinger, Sr., but owned by his son, George Stallinger, Jr.

Answering the Stallinger complaint for damages, respondents specifically denied, the allegations" of the complaint pertinent to a recovery of damages and then pleaded contributory negligence on the part of the Stallingers. Respondents also filed a cross-complaint for damages against the Stallingers. The jury found for respondent Johnson, thus denying recovery of damages to both appellants and respondents. From the judgment entered on the verdict and an order denying a new trial (sought on the ground of newly discovered evidence), the Stallingers prosecuted an appeal to this court.

Appellants say that:

"This case presents three main questions: first, the insufficiency of the evidence to sustain a verdict and judgment for the respondent and the fact that the verdict and judgment are contrary to law and against the evidence; second, the error on the part of the trial court in the giving and refusing to give of certain instructions; and, third, the error of the trial court in denying a new trial on newly discovered evidence."

These questions will be discussed in the order above stated.

George Stallinger, Sr., testified, in substance, that he was about 400 to 500 feet from the intersection when he first noticed the truck; that the view between the two roads was open; that "Q. At what rate of speed were you traveling at the time when you first saw him (Johnson)? A. Oh, I always go--I never go over 45 miles; 40 or 45; miles; 35; I don't know"; that Johnson did not stop at the "stop" sign before driving on the highway that "Q. How fast were you traveling when you first noticed that he (Johnson) wasn't going to stop? A. Oh, maybe around 40 miles. I don't know";...