Tendoy v. West, 5778

• Decision Date: 23 March 1932
• Docket Number: 5778
• Citation: 51 Idaho 679,9 P.2d 1026
• Parties: JOHN TENDOY and IRENE TENDOY, His Wife, Appellants, v. TED WEST, Respondent
• Court: Idaho Supreme Court

9 P.2d 1026

51 Idaho 679

JOHN TENDOY and IRENE TENDOY, His Wife, Appellants, v. TED WEST, Respondent

No. 5778

Supreme Court of Idaho

March 23, 1932

NEGLIGENCE-AUTOMOBILES-COLLISION-PROXIMATE CAUSE-VIOLATION OF STATUTE-ABSENCE OF LIGHTS-NONSUIT.

1. When urged as defense, burden of establishing contributory negligence as proximate cause never leaves defendant, unless before resting, he has established it or supplied facts clearly presumptive of it.

2. In absence of some probable causal connection, bald negligence per se can raise no presumption of proximate cause.

3. Where, on question of proximate cause, men's minds may honestly differ, it should always be submitted to jury.

4. Unless negligence per se contributes to result, it is not "contributory negligence."

5. Whether absence of tail-light on buggy, in violation of statute, proximately caused automobile to strike buggy from rear, held for jury (Laws 1927, chap. 260, sec. 47 (g).

6. Question whether vision of witness, motorist, was interfered with by lights of approaching automobile, being peculiarly within witness' knowledge, held improperly excluded.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action for damages for personal injuries. From a judgment sustaining a motion for nonsuit plaintiffs appeal. Reversed and remanded.

Reversed and remanded; costs to appellants.

Peterson & Clark and O. R. Baum, for Appellants.

The defendant had the burden not only of proving negligence on the part of the plaintiffs in order to defeat recovery, but had the burden also of proving that such negligence was a proximate cause of the accident, and whether the absence of a tail-light on the plaintiffs' buggy was proximate cause of the accident is always, under circumstances like those which attend the case at bar, a question of fact to be determined by the jury. (Kelly v. Troy Laundry Co., 46 Idaho 214, 267 P. 222; Hooker v. Schuler, (1927) 45 Idaho 83, 260 P. 1027; Hall v. Hepp, (1924) 210 A.D. 149, 205 N.Y.S. 474; Martin v. Oregon Stages, (1929) 129 Ore. 435, 277 P. 291; Gleason v. Lowe, (1925) 232 Mich. 300, 205 N.W. 199.)

Coffin & Zener, for Respondent.

Conceding that the burden of establishing contributory negligence is on the defendant, still the defendant may take advantage of the contributory negligence displayed by the plaintiffs' evidence on motion for a nonsuit and there can be no recovery in the absence of further exculpatory evidence. (Holland v. Pence Automobile Co., 72 Mont. 500, 234 P. 284; Elder v. Plaza Ry., 194 N.C. 617, 140 S.E. 298; 2 Blashfield, Cyclopedia of Automobile Law, p. 1608, and vol 4, p. 406; 2 Nichols' Applied Evidence, p. 1353, sec 16.)

The failure of the plaintiffs to display a light upon their buggy, as required by statute, under the circumstances disclosed by the evidence, being unexcused and unexplained, was not only negligence per se but was evidence from which a causal connection may be inferred, and if nothing else is shown to break the connection, the court is justified in granting nonsuit. (Martin v. Hertzog, 228 N.Y. 164, 126 N.E. 814; Hamilton v. Carpenter, 49 Idaho 629, 290 P. 724.)

LEE, C. J. Budge, Givens, Varian and Leeper, JJ., concur.

OPINION

LEE, C. J.

Plaintiffs and appellants, John Tendoy and wife, Irene, sued defendant and respondent, Ted West, to recover damages for personal injuries of the wife caused by a rear end collision with an automobile alleged to have been negligently driven by respondent. In defense, respondent affirmatively plead that at the time of the collision, about 11 P. M., appellants were driving a light buggy along the highway, which, in contravention of the requirements of subdivision g, sec. 47 of chap. 260 of the 1927 Session Laws, was not equipped with "any lighted lamp or lantern whatever," and that appellants "did not have on display on the rear of their said buggy a yellow or red light or a reflector." Such alleged delinquency respondent averred to have been the proximate cause of the accident.

Upon the trial, Mrs. Tendoy testified that on the evening of the collision it was "quite light with the stars out"; that appellants were driving slow; that she looked back "two or three times," the first time seeing respondent's car approaching "about a quarter of a mile back", with bright lights, the rays of which were playing upon appellant's buggy; that, looking back again, she saw the car close upon them, coming fast, with lights "pretty bright" and thrown upon the buggy and its occupants. Looking back a third time, she saw the car "right behind us," shedding its lights upon them. Just at this juncture, she said, she saw a car approaching in the opposite direction, some 200 yards away, its lights being "towards us" and the buggy being "in the light of that car": she admitted that the buggy carried no tail-light as by law required.

On cross-examination under the statute, in response to the question, "Were you blinded by the lights of an approaching car as you came upon and approached the Tendoy car?", respondent testified: "I didn't say that I was blinded by the lights. I was confused somewhat by them, as anyone naturally would be, with an approaching car, he would be a little more alert, and my attention was centered upon the approaching car." The next question, "Was your vision interfered with by the lights of the approaching car?" met with a sustained objection. Respondent moved for a nonsuit upon the ground that the admitted failure of appellants to carry the lights required by statute constituted negligence per se, in and of itself, under all the evidence, operating as the contributing and proximate cause of the accident. The motion was sustained, the trial court observing: "It would seem to me that the jury could come to no other conclusion than if the tail-light were burning on the buggy the driver could have seen the buggy in time to have avoided the collision." From the consequent judgment of nonsuit and dismissal, the Tendoys appealed, their only complaint being that the court erred in sustaining the motion for nonsuit and respondent's objection to the question hereinbefore adverted to.

The main question involved is whether or not, from all the evidence, the trial court was justified in holding that appellants' negligence per se was the contributing and proximate cause of the accident. The case at bar is to be distinguished from Kelly v. Troy Laundry Co., 46 Idaho 214, 267 P. 222, in this. In the one, plaintiffs' negligence per se was disclosed by their case in chief: in the other, that negligence was first advanced by the defendant. The rule is succinctly stated in Nichol's Applied Evidence, vol. 2, p. 1353, sec. 16:

"Where contributory negligence appears from plaintiff's evidence the burden is not upon defendant. When, in a personal injury action, plaintiff's own case presents evidence which, if unexplained, would make out prima facie contributory negligence on his part, there must be further evidence exculpating him, or he cannot recover. However, it is only where plaintiff's own evidence raises a clear presumption of contributory negligence that defendant does not have the burden of proof thereon." (Italics ours.)

When urged as a defense, the burden of establishing contributory negligence as the proximate cause never leaves the defendant unless plaintiff, before resting, has relieved him by establishing it or supplying facts clearly presumptive of it. In the absence of some probable causal connection, bald negligence per se can raise no presumption of proximate cause: it may be wholly innocent. It is no more effective than any other kind of negligence. Where, on the question of proximate cause, men's minds may honestly differ, it should always be submitted to the jury. Kelly v. Troy Laundry Co., supra; ...