Vincen v. Lazarus
| Decision Date | 03 July 1969 |
| Docket Number | No. 10277,10277 |
| Citation | 456 P.2d 789,93 Idaho 145 |
| Parties | David VINCEN and Pamela Vincen, husband and wife, Plaintiffs-Respondents, v. Michael E. LAZARUS, Defendant-Appellant. Glenn J. RHODES, Jr., Arthur McKay, Rex W. McKay and Lloyd McKay, Plaintiffs-Respondents, v. Michael E. LAZARUS, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Furchner & Anderson, Blackfoot, for appellant.
Clemons, Skiles & Green, Boise, for appellees.
This opinion treats together two actions which were consolidated for disposition, since they both arose out of the same accident. During the late afternoon of July 23, 1965, plaintiff-respondent David Vincen (Vincen) accompanied by his wife, was driving his employer's 1955 GMC truck northerly on Highway 28, a two-lane highway, in Lemhi County, Idaho, and near the old mining town of Gilmore. The truck was a flatbed and was loaded with an Ingersoll-Rand rock drill weighing 5,000 to 6,000 lbs. It was daylight, the weather was clear, the highway was dry, level and straight for several miles in each direction and there were no sight obstructions. Both Mr. and Mrs. Vincen testified that the speed of the truck was 50 to 55 miles per hour.
At the same time and place defendant-appellant Lazarus was driving his Jeep station wagon in a northerly direction on Highway 28 and was ahead of plaintiffs' truck. He was pulling a small teardrop trailer which was equipped with red brake and left-right turn signals all of which were electrical and were in good operating condition. Lazarus had missed a turn off of Highway 28 and had slowed down for several miles to a speed 15 to 20 miles per hour and was looking for a place on either side of the highway to turn around and reverse his direction. As Lazarus approached the place where the accident occurred, but before he actually saw the intersecting road, he observed plaintiffs' truck some distance behind him in the right hand or northbound lane of travel. Because of the trailer, defendant was able to utilize only the side rear view mirror and not the inside rear view mirror. About ten seconds later, according to Lazarus' testimony, Lazarus put on his left turn signal and after an additional three to five seconds began his left turn into the two-rut Hilltop Mine Road.
The Vincens testified that they observed the Jeep and trailer ahead of them in their own lane of traffic traveling very slowly and that they were rapidly overtaking it. Vincen states that he observed the highway in both directions, turned on his left turn signal about a city block behind defendant, pulled into the left lane, and during the city block proceeded to overtake defendant's vehicle. As plaintiffs' truck was about 15 to 20 feet from the rear of the trailer the Vincens saw for the first time a red light flash on the trailer, and the Jeep commenced its left turn. Vincen did not sound his horn, turn, or attempt to apply his brakes until the moment of the impact which was in the left lane of travel. The left front of Lazarus' Jeep hit the right rear double wheels of Vincen's truck. The Jeep and trailer came to rest still on the highway and the truck rolled several times and came to rest between 300 and 400 feet from the point of impact and facing a southerly direction on the westerly side of the highway.
The characteristics of the roads involved where the accident occurred are best ascertainable from plaintiffs' photographic exhibit no. 1:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
There were no official intersection or turnoff warning signs at the place of collision. There was a rather small sign indicating that a mine existed in the direction of the two-rut road. This sign was put up by a private party. Even appellant Lazarus could not testify that he saw this sign before he turned. Vincen had driven Highway 28 several times before the accident and knew generally that some minor dirt roads entered the highway, but he had no particular familiarity with the Hilltop Mine Road. Vincen's ventage point fromt he truck was somewhat better than that of Lazarus, but Vincen did not see the road as he approached to pass Lazarus. The public generally was not prevented from using Hilltop Mine Road, but according to appellant's witnesses on cross-examination, neither the State, County, nor the Bureau of Land Management maintains the road.
There was some testimony that after the accident certain conversation took place between Vincen and Lazarus. Vincern asked why Lazarus turned. Lazarus replied that he thought Vincen was further back. Lazarus asked whether Vincen saw his signal, and Vincen replied that he saw a red light too late to do anything to avoid the collision.
On these facts, the district court denied Lazarus' motion for summary judgment and, after trial to the court, awarded judgment to Mr. and Mrs. Vincen for lost wages, hospital and medical expenses, and general damages totaling $9,969.15 and to Mr. Vincen's employer, Rhodes & McKay for the loss of the truck and damage to the drill it carried totaling $8,307.42. Defendant Lazarus' appeal presents but one ultimate issue, whether or not the court below correctly concluded that Vincern was not contributorily negligent. No error is assigned to the finding of negligence on the part of Lazarus or to the amounts of damages awarded.
Appellant Lazarus first argues that the court erred in denying his motion for summary judgment under Idaho R.Civ.P. 56 for the reason that the pleadings, depositions and affidavit showed no genuine issues of material fact and that respondent Vincen was contributorily negligent as a matter of law. The first basis for this argument is that, since the complaints allege that the accident occurred at an intersection of two roads and the answers admit such fact, there is no question that Vincen attempted to overtake Lazarus at an intersection contrary to I.C. § 49-713(a)(2), and this violation of the statute constitutes negligence per se. We cannot accept this line of reasoning, however, because, as respondents contend, the pleadings use the word 'intersection' in its generic senseonly. The legal question as to whether the intersection of the two roads constitutes an intersection as defined by statute and as used in the statutory rules of the road still remain, and its answer depends in part upon a material issue of fact, namely, whether or not in this case the Hilltop Mine Road was publicly maintained. The depositions and affidavit failed to foreclose this question of fact.
The second basis for appellant's argument that his motion for summary judgment should have been granted is that Vincen's failure to sound his horn as he attempted to overtake Lazarus violated I.C. § 49-834(a) requiring a driver to sound his horn 'when reasonably necessary to insure safe operation' and that this violation constituted negligence per se. Neither can we accept this line of reasoning, however, because whether or not such action was 'reasonably necessary' is peculiarly dependent upon all of the factual circumstances of the accident. The depositions of Mr. and Mrs. Vincen and the affidavit of Lazarus disclose several areas of factual uncertainty which would bear upon the legal question of whether or not the sounding of Vincen's horn was 'reasonably necessary.' First, how faxt was each of the parties traveling? Mr. Vincen stated on his deposition that he was traveling fifty miles per hour and that Lazarus appeared to be traveling thirty miles per hour. Mr. Lazarus stated in his affidavit that he was traveling 'very slowly' or fifteen to twenty miles per hour and that Vincen appeared to be traveling in excess of forty-five miles per hour. Second, how far behind Lazarus was Vincen when he drove the truck into the opposite lane to pass Lazarus? Mr. and Mrs. Vincen stated on their depositions only that Lazarus was ahead of them, while Lazarus stated in his affidavit that, though he could not estimate the distance, Vincen appeared to be far enought behind to allow ample opportunity to make a left turn. Third, and most important, precisely when did Lazarus put on his turn signal or brake light as an indication that something was about to happen? Mr. and Mrs. Vincen stated on deposition that they first saw a flash of light when they were within fifteen feet of the rear of Lazarus' car or trailer. Lazarus stated in his affidavit that he turned his left-hand signal on three to five seconds before the collision. In view of these factual issues and the legal standard to which they were material, the trial court could not have granted summary judgment to Lazarus.
Appellant also asserts that, since Lazarus presented his affidavit as to the circumstances of the collision while the Vincens presented no counter-affidavits, the court should have granted Lazarus' motion for summary judgment pursuant to the last two sentences of Idaho R.Civ.P. 56(e), which require that opposition to a motion for summary judgment must be as specific and as detailed as the facts urged in support of the motion. This argument misconstrues paragraph (e) of the rule because it fails to consider the remainder of the rule. The portion of Idaho R.Civ.P. 56(e) upon which appellant relies itself states that, '(w)hen a motion for summary judgment is made and supported as provided in this rule,' the opposition must be equally specific. (Emphasis added). Idaho R.Civ.P. 56(b) provides that a motion for summary judgment for a defending party may be made 'with or without supporting affidavits.' Idaho R.Civ.P. 56(c) provides that summary judgment shall be rendered 'if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Emphasis added). Nowhere does the rule require the filing of counter-affidavits merely because the motion may be supported by affidavits. What is critical...
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