Stuart v. McVey, 6498

• Decision Date: 09 February 1939
• Docket Number: 6498
• Citation: 59 Idaho 740,87 P.2d 446
• Court: Idaho Supreme Court
• Parties: ALICE STUART, GORDON WILLIAM STUART, by His Guardian ad Litem, ALICE STUART; and GILBERT EDWARD STUART, by His Guardian ad Litem, ALICE STUART, Respondents, v. ORA MCVEY, G. M. MCVEY and M. O. MCVEY, Copartners Doing Business Under the Firm Name and Style of MCVEY'S

87 P.2d 446

59 Idaho 740

ALICE STUART, GORDON WILLIAM STUART, by His Guardian ad Litem, ALICE STUART; and GILBERT EDWARD STUART, by His Guardian ad Litem, ALICE STUART, Respondents, v. ORA MCVEY, G. M. MCVEY and M. O. MCVEY, Copartners Doing Business Under the Firm Name and Style of MCVEY'S

No. 6498

Supreme Court of Idaho

February 9, 1939

AUTOMOBILES-INJURY ARISING FROM USE OF-NEGLIGENCE-DRIVING ON WRONG SIDE OF ROAD-INSTRUCTIONS-INTOXICATION-EVIDENCE.

1. An instruction to find for plaintiffs, in action for death of driver of automobile colliding with defendants' truck, if truck was being driven on left side of highway, was erroneous as in effect instructing jury that driving on left side of highway is negligence per se.

2. Driving motor vehicle on wrong side of road is only prima facie negligence, not negligence per se.

3. An erroneous instruction to find for plaintiffs, in action for death of driver of automobile colliding with defendants' truck, if truck was being driven on left side of highway, was prejudicial to defendants, especially when considered with instructions to effect that it was truck driver's absolute duty to avoid accident even if deceased was driving on his left side of highway.

4. An instruction to find for plaintiffs, in action for death of driver of automobile colliding with defendants' truck, if circumstances were such as to put ordinarily prudent person on notice of imminent and impending danger, truck driver had ample time thereafter to move truck to right side of highway or stop it, and doing of either would have prevented collision, was erroneous.

5. Whether person was negligent in taking course pursued by him under circumstances creating imminent and impending danger depends on whether he acted in reasonably prudent manner under circumstances.

6. A person in imminent danger is not necessarily negligent in failing to take every precaution or adopt every means of safety that careful calculation subsequently shows that he might have taken or adopted.

7. One in great peril, to avoid which immediate action is necessary is not required to exercise all presence of mind and careful- ness required of careful and prudent man under ordinary circumstances.

8. Instructions to find for plaintiffs, in action for death of driver of automobile colliding with defendants' truck, if collision was proximately caused by turning of truck to left back onto oiled surface of highway from right side thereof immediately before collision and would not have occurred had truck not been driven back onto such surface, were erroneous and prejudicial to defendants.

9. Evidence of person's drinking of intoxicating liquors and his condition respecting intoxication is admissible on question of his intoxication at certain time, if not too remote in point of time.

10. Evidence that automobile driver, killed in collision with truck, was intoxicated during period ending about three hours before collision, was admissible as not too remote in time on trial of action against truck owners for his death.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. James W. Porter, Judge.

Action for damages for wrongful death. Judgment for respondents. Reversed and remanded for new trial.

Reversed and remanded with instructions. Costs awarded to appellants.

Frank L. Stephan and J. H. Blandford, for Appellants.

Gross negligence arises where any person drives a vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property. Deceased was guilty of gross negligence contributing to his own injury. (Sec. 48-503, I. C. A.; Astin v. Chicago M. & St. P. R. R. Co., 143 Wis 477, 128 N.W. 265, 31 L. R. A., N. S., 158; Blashfield, Cyclopedia of Automobile Law and Practice, vol. 10, p. 341, sec. 6617.)

Testimony as to the number of drinks of intoxicating liquor taken by the person involved, and his acts and conduct from the beginning of the drinking until the collision of the cars, may be introduced in evidence and taken into consideration for the purpose of determining whether the one involved was or was not driving an automobile while in an intoxicated condition; also for the purpose of determining whether the person involved was only under what is called the "influence of intoxicating liquor." (Tracy v. Brecht, 3 Cal.App. (2d) 105, 39 P.2d 498.)

Chapman and Chapman, for Respondents.

To sustain a defense of contributory negligence it is only necessary to establish the failure to exercise that degree of care which an ordinarily prudent person would have exercised under like or similar circumstances. (Anderson v. Southern California Edison Co., 77 Cal.App. 328, 246 P. 559; Phillips v. Hobbs-Parson Co., 67 Cal.App. 199, 227 P. 622; Thompson v. Los Angeles & S.D. B. Ry. Co., 165 Cal. 748, 134 P. 709; Williamson v. Neitzel, 45 Idaho 39, 260 P. 689.)

Evidence tending to establish intoxication at a time when it could have been reasonably anticipated that the intoxication would have passed off, is inadmissible. (Johns v. Mecchi, 116 Cal.App. 31, 2 P.2d 452; Illinois Central R. Co. v. McGuire's Admr., 239 Ky. 1, 38 S.W.2d 913.)

BUDGE, J. Ailshie, C. J., Givens, J., and MORGAN, J., concurring. Holden, J., dissents.

OPINION

BUDGE, J.

This action for damages for the death of Floyd Stuart was instituted as the result of a collision occurring near Twin Falls about 9 o'clock in the evening of August 5, 1936, between the truck of appellants, driven by Leroy Goible, and an automobile owned and driven by Floyd Stuart, as a result of which collision Stuart was injured and died August 9, 1936. The record discloses, among other things, the following facts which are virtually without conflict: The highway right of way is 48 feet wide and the oiled portion thereof is 18 feet wide, on each side of which there is a graveled shoulder 3 feet in width and an additional dirt shoulder varying from 2 to 3 feet in width. The model T Ford sedan driven by deceased was traveling in an easterly direction and the truck of appellants was traveling in a westerly direction, both on the above-described highway. Appellants' truck had a flat bed or rack extending out 20 inches from the edge of its cab, the widest portion of the truck (the bed) being 7 feet 11 inches. In some manner in meeting and attempting to pass, the truck and the Ford collided. The point of impact on the Ford appeared to be on its left-hand side just over and back of the hood and about four inches back on the body "at about the exact spot where the old parking lights used to be on the old makes of cars." The point of impact on the truck appeared to be about 4 inches in from the left front corner of the truck bed or rack. A quantity of broken glass was found at a point on the south side of the highway, which point apparently approximates the point of collision. The deceased's car, after the collision, rested on the highway 60 feet beyond and east of the point of collision. The tracks of the truck disclosed it had traveled, immediately before reaching the point of collision, a distance of about 6 steps with its right wheels, 6 to 8 inches off the oil on the north side of the highway, the right hand side with reference to the truck. The point where the broken glass was found was even with, that is, immediately south of, the point where the right wheels of the truck came back on the oiled portion of the road. The tracks of the truck indicated that from the point where its right wheels again came on to the oiled portion of the highway it crossed the highway southwesterly at an angle of 30 degrees, "across the road to the borrow pit through a fence and 71 steps as I stepped it off."

There is evidence that deceased's car had but one light and that as the car approached the truck it weaved from side to side, first on the right and then on the wrong side of the road, as if mechanically defective or driven by a person intoxicated, and there is further evidence that the odor of liquor was noticed upon Stuart's breath when he was being taken to the hospital after the collision.

The jury returned a verdict in favor of respondents, wife and children of the deceased Stuart, in the amount of $ 7,500 and from the judgment entered thereon and an order denying motion for new trial this appeal is taken.

While there was considerable evidence introduced in the case it does not appear either necessary or essential to a determination of the appeal to review it in minute detail. From the evidence and as appears from the foregoing statement it is reasonable to conclude that any one of several factors may have caused the collision. Among other grounds for reversal appellants urge that the court erred in giving instructions numbered 20, 24, 25 and 26.

Instruction number 20, urged by appellants to be erroneous, reciting:

"You are instructed, gentlemen of the jury, if you find from the evidence that the defendant's driver, Leroy Goible, at the time of the accident in question was driving his truck upon the left-hand side of the highway, that then in that event your verdict should be for the plaintiffs." does not express the law obtaining in this state, but is contrary thereto, in effect instructing the jury that driving on the left-hand side of the highway is negligence per se. In Hamilton v. Carpenter, 49 Idaho 626, 290 P. 724, this court announced the rule that where one collides with another to his left of the center of the highway he is prima facie guilty of negligence:

"We think the purpose of the vehicle law is to enjoin vigilance and caution at all times upon all traveling the highways,...