Warren v. Eshelman
| Decision Date | 28 April 1965 |
| Docket Number | No. 9544,9544 |
| Citation | 401 P.2d 539,88 Idaho 496 |
| Parties | Raymond E. WARREN, Plaintiff-Appellant, v. Charles H. ESHELMAN, Defendant-Respondent. |
| Court | Idaho Supreme Court |
Coughlan & Imhoff, Boise, for appellant.
Elam, Burke, Jeppesen & Evans, Boise, for respondent.
On November 14, 1961, appellant, Raymond E. Warren, was foreman of a sixman crew employed by the Hood Construction Company which was engaged in installing a gas line service to a farm house located approximately 1 3/4 miles east of Meridian, Idaho, on State Highway 69. Appellant and his crew arrived at the job site at approximately 9:00 o'clock a. m. and appellant parked his pickup truck in a driveway leading into the farm on the west side of said highway 69, which extends in a north and south direction. The other vehicles and equipment brought by appellant's crew were parked on the east side of said highway.
The farm house to which the gas line installation was being made was situated about 80 or 90 feet westerly from where said vehicles had been parked. Members of appellant's crew had attached a 1-inch water hose, which was approximately 200 feet in length, to a faucet on the farm house and had laid the hose upon the ground across said highway and into a field on the east side thereof where it was attached to a bore motor weighing approximately 50 pounds. The bore motor was to be used to drill a hole underneath the highway so that the extension gas pipe could be connected from the gas main to the farm house. There was evidence that at the time of the accident water was in the hose and that it lay across the roadway at an angle of approximately 10 degrees from right angle to the road. Between the time the hose was first laid across the roadway and the time of the accident (approximately 9:30 a. m.) several vehicles and passed over the hose without incident.
Appellant's crew had placed barricades approximately 300 feet both to the north and to the south from where the hose crossed the highway. The barricades were approximately 3 feet high and from 30 to 36 inches long, painted yellow with black stripes.
On the morning of the accident the weather was clear, and the roadway dry. Respondent was driving a 1960 Pontiac station wagon in a northerly direction along said highway 69 accompained by his brother Carl. The testimony is conflicting relative to the speed at which respondent was traveling at the time his car came in contact with the hose. There is also conflict as to the distance respondent traveled after hitting the hose. Appellant testified that at the time of the accident he was standing two or three feet south of the hose and that he did not touch the hose prior to the accident; that when respondent's car hit the hose it became entangled around his legs and threw him 10 or 12 feet in the air causing the injuries for which he seeks damages.
Respondent and his brother testified that when they were approximately 100 feet from the hose appellant ran out from behind a truck, grabbed the hose and flipped it 8 to 10 feet in the air letting it fall to the pavement, and just before the accident appellant again flipped the hose into the air causing it to fall on the hood of respondent's car as it passed.
At the conclusion of a trial the jury returned a verdict in favor of appellant in the sum of $10,000. Judgment was entered upon the verdict and in due time respondent moved the court for a new trial which was granted. This appeal is from the order granting a new trial. The granting of a new trial is assigned as error and such error presents the only issue involved.
Respondent's motion for a new trial was based upon the following mentioned three grounds: (1) The verdict is contrary to the law; thereafter respondent specifies nine particulars which are claimed to support this ground. (2) The verdict is contrary to the evidence; respondent thereafter specifies five particulars which allegedly support this ground. (3) Excessive damages appearing to have been given under the influence of passion or prejudice.
We do not know upon what ground the court granted the new trial. We have adopted the rule that an order granting a new trial will be liberally construed in support of the order and it will not be reversed...
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