Stearns v. Graves

• Decision Date: 24 March 1941
• Docket Number: 6821,6820
• Citation: 111 P.2d 882,62 Idaho 312
• Parties: SARAMAE STEARNS, a minor by Arthur J. Stearns, her guardian ad litem, Respondent, v. RICHARD L. GRAVES and RAY v. CHISHOLM, Appellants, consolidated with ARTHUR J. STEARNS and MABEL STEARNS, husband and wife, Respondents, v. RICHARD L. GRAVES and RAY v. CHISHOLM, Appellants
• Court: Idaho Supreme Court

111 P.2d 882

62 Idaho 312

SARAMAE STEARNS, a minor by Arthur J. Stearns, her guardian ad litem, Respondent, v. RICHARD L. GRAVES and RAY v. CHISHOLM, Appellants, consolidated with ARTHUR J. STEARNS and MABEL STEARNS, husband and wife, Respondents, v. RICHARD L. GRAVES and RAY v. CHISHOLM, Appellants

Nos. 6820, 6821

Supreme Court of Idaho

March 24, 1941

AUTOMOBILES - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - QUESTIONS FOR JURY - PROXIMATE CAUSE - LAST CLEAR CHANCE - INSTRUCTIONS - TRIAL - MOTION FOR NONSUIT AND DIRECTED VERDICT - MOTION FOR NEW TRIAL - APPEAL.

1. A motion for nonsuit and for directed verdict as well as a motion for judgment non obstante veredicto admits the truth of the adversary's evidence and every inference of fact which may be legitimately drawn therefrom.

2. A trial court should not take a case from the jury unless, as a matter of law, no recovery could be had on any view which properly could be taken of the evidence.

3. The Supreme Court will not reverse an order of a trial court denying or granting a motion for new trial unless it is patent that the trial court has abused the sound legal discretion vested in it by law.

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

5. Whether sounding of horn warned girl crossing street of approach of automobile which struck her, whether automobile was on its proper side of street, whether driver was traveling at an excessive rate of speed, whether he should have had or did have automobile under control, and whether driver had the last clear chance to avoid the accident were questions for the jury.

6. Instructions on last clear chance doctrine as applied to motorist whose automobile struck girl crossing street at night were not erroneous because of the inclusion of certain phrases and the exclusion of others.

7. An instruction that a motorist who does not see a pedestrian and hence gives no warning, when by the exercise of reasonable and ordinary care he would and could have seen him and given warning of his approach, is liable and that a motorist cannot use his own carelessness and want of ordinary care as a shield to escape liability is proper.

8. The proximate cause of an injury is ordinarily a question for the jury, but the jury must be instructed as nearly as possible on what constitutes the proximate cause of the injury.

9. Generally, in negligence cases the final cause immediately antecedent to the infliction of the injury is the "proximate cause" of the injury, and there can be but one proximate cause, although that need not in all cases be the sole cause.

10. An instruction on the last clear chance doctrine referring to "a proximate cause" of injuries sustained by girl struck by automobile when crossing street and referring to the negligence of both girl and owner and operator of automobile each as proximate causes of accident was confusing and misleading, and the giving of that instruction together with trial court's comment from which jury might well have understood that the last clear chance is the last possible chance constituted reversible error.

11. The most that the law requires in negligence cases involving the last clear chance doctrine is the exercise of reason- able and ordinary care and diligence such as a reasonably prudent person would exercise under similar circumstances.

12. An instruction referring to negligence of girl struck by automobile "in starting to walk across the street at the time and under the circumstances" was not erroneous as assuming that girl walked across street, where court instructed that he was not stating or intimating the merits of the contentions of either party or what facts were established by the evidence, that it was jury's duty to determine facts established and apply the law, and that all instructions should be read and considered together.

APPEALS from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Two actions arising out of injuries to minor child from automobile accident, one by the minor child, by her guardian ad litem, to recover damages for personal injuries, the other by the parents to recover for hospital and medical expenses and loss of earnings. Judgments for plaintiffs. Reversed and remanded with directions to grant a new trial.

Judgment reversed and a new trial granted. No costs allowed.

Oscar W. Worthwine, for Appellants.

A plaintiff guilty of contributory negligence cannot recover under the theory of the last clear chance where such negligence is the proximate cause of the injury. (Pilmer v. Boise Traction Co., 14 Idaho 327, at 347, 94 P. 432; York v. Alho, 52 Idaho 528, 16 P.2d 980; 45 C. J., p. 993; 92 A. L. R., p. 149; Moran v. Smith, 95 A. 272; Cyc. of Automobile Law, vol. 4, sec. 2814, p. 559; Young v. Southern P. Co., 210 P. 259; Merchants Transportation Co. v. Rowd, (Fla.) 149 So. 401.)

The court erred in not instructing the jury on all of the elements of the last clear chance doctrine. (Geist v. Moore, 58 Idaho 148, at 174; Peterson v. Universal Automobile Insurance Co., 53 Idaho 11, 20 P.2d 1016; French v. Tebben, 53 Idaho 701, 27 P.2d 475; 64 C. J. 729, p. 933; Emerson v. County of Santa Clara, 40 Cal. 543.)

The court erred in failing to instruct the jury on the means that the defendants had at hand to avoid the accident, and that their prior negligence did not make defendants liable. ( Geist v. Moore, 58 Idaho 149, at 174; Restatement of Law of Torts, vol. 2, p. 1256; Cyc. of Automobile Law and Practice, vol. 4, p. 539; Ramsdell v. Varick, (N. H.) 170 A. 12; Johnson v. Director General, (N. H.) 125 A. 147.)

The court erred in asking the jury, "Why didn't the defendants see the girl?" (Oaks v. West, 1801 Tex. Civ. App., 64 S.W. 1033; Mears v. Gage, 107 Mo.App. 140, 80 S.W. 712; Andrew v. Linebaugh, 260 Mo. 623, 169 S.W. 135.)

The court erred in telling the jury that the last clear chance would be the last possible chance. (45 C. J., p. 1316; Pilmer v. Boise Traction Co., 14 Idaho 327, 94 P. 432; Restatement of Law of Torts, p. 1256; Palmer v. Tschudy, (Cal.) 218 P. 36.)

S. T. Schreiber and Charles F. Reddoch, for Respondents.

The court should not take a case from the jury unless, as a matter of law, no recovery could be had upon any view which properly could be taken of the evidence. (Bennett v. Deaton, 57 Idaho 752, 68 P. 895; Evans v. Davidson, 58 Idaho 600, 77 P.2d 661; McAlinden v. St. Maries Hospital Assn., 28 Idaho 657, 156 P. 115.)

Contributory Negligence: One run down by an automobile going forty miles an hour on the wrong side of the street cannot be said as a matter of law to be guilty of contributory negligence. ( McKeown v. Delbridge, 55 S.D. 579, 226 N.W. 947; 67 A. L. R. 311; Donovan v. Boise City, 31 Idaho 324, 171 P. 670; Staab v. Rocky Mtn. Bell Tel. Co., 23 Idaho 314, 129 P. 1078; Deonardo v. Pravc, 32 Ohio App. 445, 168 N.E. 225.)

Proximate Cause: Proximate cause is defined as an act of omission which immediately causes, and without which the injury would not have happened. (Cady v. Sanford, 57 Cal.App. 218, 207 P. 45; Miller v. Kelly Coal Co., 239 Ill. 626, 88 N.E. 196; Antler v. Cox, 27 Idaho 517, 149 P. 731; Scott v. Shepherd, 2 Bl. W. 892; Girdner v. Union Oil Co., 216 Cal. 197, 13 P.2d 915.)

Last Clear Chance: In California where the rule prevails that one of the elements of the last clear chance doctrine is awareness by the defendant of the plaintiff's perilous situation, the district court of appeal has recently held that the jury might be instructed as to the doctrine of last clear chance, although there is no direct evidence; that the defendant actually knew of the victim's presence in the roadway, and even though he may have testified that he did not see the victim in time to avert the collision. ( Guyer v. P. Elect. Ry. Co., 24 Cal.App. (2d) Series, p. 499, 75 P.2d 550; Argo v. Southern P. Co., (Cal. App.) 104 P.2d 77.)

HOLDEN, J. Givens, P. J., Ailshie, J., and Sutton, D. J., concur, Morgan, J., concurs in the conclusion. Budge, C. J., did not sit at the hearing or participate in the decision.

OPINION

HOLDEN, J.

October 21, 1938, between 8:45 and 9:00 P.M., Saramae Stearns, a minor over 13 years of age, her sister Susanna, Laura Shook and Mary Wilcomb were in front of the Wilcomb home on what is commonly known as Overland Avenue. At that time, driving a Chevrolet car, one John Harris was approaching from the west. Saramae signaled Harris to stop, which he did, and Saramae then crossed the highway to where Harris stopped. They then engaged in a brief conversation after which Harris started driving away in an easterly direction. Thereupon Saramae started to return, walking in a westerly direction until she cleared the Harris car, when she started back across the street and was struck by a car owned by appellant Graves but being driven by appellant Chisholm, from the effects of which Saramae was seriously injured.

Thereafter Arthur J. Stearns and Mabel Stearns, parents of Saramae commenced an action against appellants Graves and Chisholm to recover monies expended and expenses incurred for hospitalization and medical services made necessary, and loss of earning power claimed to have been sustained, on account of the injuries suffered by the minor daughter. An action was also commenced by Saramae Stearns by her guardian ad litem, Arthur J. Stearns, to recover damages for personal injuries so sustained. These actions were consolidated in the district court and tried together, commencing May 27, 1940. When plaintiffs rested appellants moved for judgment of nonsuit which the court denied. At the close of...