Whitt v. Jarnagin

• Decision Date: 29 September 1966
• Docket Number: No. 9774,9774
• Citation: 91 Idaho 181,418 P.2d 278
• Parties: James P. WHITT, Plaintiff-Appellant, v. Dale JARNAGIN and Craig Mountain Railway Company, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 278

418 P.2d 278

91 Idaho 181

James P. WHITT, Plaintiff-Appellant, v. Dale JARNAGIN and Craig Mountain Railway Company, Defendants-Respondents.

No. 9774.

Supreme Court of Idaho.

Sept. 29, 1966.

McFadden & Park, St. Maries, for appellant.

Clements & Clements, Lewiston, for respondent, Dale Jarnigan.

E. L. Miller, Coeur d'Alene, for respondent, Craig Mt. Ry. Co.

SMITH, Justice.

This is a tort action whereby appellant seeks damages on account of his personal injuries and damages to his automobile, sustained as the result of a collision with a cow on U.S. Highway 95. Appellant, in his complaint, alleges respondents' concurrent and consecutive acts of negligence as causative of the collision, injuries and damage, and asserts joint and several liability of respondents.

On December 8, 1962, about 10:30 o'clock p. m., appellant was driving his automobile at a speed of 50 to 55 miles per hour in a northwesterly direction on U.S. Highway 95 approximately 1 and 1/2 miles from Winchester, Idaho. As he rounded a curve he observed a car parked atop a rise on the opposite side of the highway; the car had its lights on and was facing him. He slowed down to a speed of 10 to 15 miles per hour. A man (later identified as Cecil Uhling) was standing between the car and the road. Observing no sign of trouble and not wanting to stop because of three teen age boys in his charge, appellant began to pick up speed. About 150 to 200 feet past the parked vehicle appellant sighted some black Angus cows-four being on the left side of the road, one in appellant's lane of traffic and one at the right side of the road. Appellant immediately applied the brakes of his automobile, but was unable to stop the car before striking one of the cows, which thereby brought the vehicle to an abrupt halt. Appellant left the car with the parking lights on and walked down the highway in the direction he had been traveling in an attempt to stop an oncoming automobile and to obtain assistance. His three companions walked in the opposite direction to seek assistance; they talked with the man, Mr. Uhling, who had been standing by the parked car. Uhling told them that he had waved a flashlight to warn them of the impending danger ahead; that he, too, had hit a cow. A passing car stopped and then went for assistance.

About 30 minutes later respondent Jarnagin, owner of the cows, arrived and subsequently returned the cows to his pasture. The pasture itself is on the right hand side of U.S. Highway 95 when facing the direction in which appellant was driving. The pasture is entirely surrounded by a fence, the portion nearest the highway consisting of four strands of barbed wire; the fence, as it extends north from the highway, is composed of four strands of barbed wire and woven wire. The remainder of the pasture is surrounded by a three-strand barbed wire fence.

The railroad tracks of respondent, Craig Mountain Railway Company, extend through the pasture and intersect U.S. Highway 95 at a converging angle. At the point where the tracks converge with the fence there is a cattle guard which is about 2,000 feet from where the tracks intersect the highway. There are three gates through the fence bordering U.S. Highway 95 and adjacent to the cattle guard. When returning the cattle to the pasture, Mr. Jarnagin noted that the gate adjacent to the cattle guard was closed and that the cattle guard had been removed and set to one side. He obtained assistance in replacing the cattle guard.

Subsequently appellant filed his complaint in which he alleged that he was unable to stop his automobile and avoid striking the animal, and that the collision caused substantial damage to his car and injury to himself; that the animals owned by Jarnagin has escaped from Jarnagin's pasture which was located within a herd district and not in open range country; that respondent railway company was making repairs to the fences and cattle guards enclosing the pasture, and that the cattle guards or gates enclosing the pasture were left in a condition which permitted the cattle to escape from the pasture; and that the escape of the animals and their presence on the highway were due to the negligence of Jarnagin or the railway company.

Respondent railway company, in its answer, generally denied the allegations of the complaint, including the allegation that the pasture was within a herd district, and asserted the defenses of contributory negligence and assumption of risk.

Respondent Jarnagin, in his answer, admitted that his pasture was within a herd district; generally denied the remainder of the allegations of the complaint, and asserted the affirmative defenses of contributory negligence and last clear chance.

As a separate defense and cross-claim respondent Jarnagin alleged that respondent railway company maintained and operated its railroad over and across the Jarnagin pasture which was enclosed by lawful fences in good repair; that the railway company, upon its right-of-way across the pasture, maintained a cattle guard which, without Jarnagin's knowledge or consent, it had removed sometime prior to December 8, 1962 so as to permit some of the Jarnagin cattle in the pasture to wander upon the bordering U.S. Highway 95. Jarnagin then alleged that if liability existed, the railway company was solely liable to appellant; and that should Jarnagin be held liable, that he have judgment against the railway company as the primary tort feasor.

The trial court, pursuant to I.R.C.P. 42(b) ordered a separate trial of Jarnagin's cross-claim, to be held at a time subsequent to the trial of the issues raised by appellant's complaint and respondents' answers thereto.

The trial proceeded before the court, sitting with a jury. At the conclusion of appellant's case, respondent Jarnagin moved for an involuntary dismissal of the action (I.R.C.P. 41(b)), the motion being grounded upon appellant's asserted contributory negligence; also lack of application to the proven facts of the doctrine of res ipsa loquitur.

Respondent railway company moved for an involuntary dismissal of the action on the ground of failure of appellant to show negligence on the part of the railway company.

Prior to the court's rulings upon respondents' motions, appellant moved the court to reopen the case in order to permit appellant to submit evidence on two points, viz., (1) concerning the existence of a herd district in the area, and (2) concerning the knowledge, and the duty of respondent railway company to determine the existence of cattle in the pasture. Both respondents resisted the motion.

The court thereupon denied the motion to reopen. The court then granted the motions for involuntary dismissal, followed by entry of judgments of involuntary dismissal with prejudice as to both respondents, from which judgments appellant perfected this appeal.

Appellant assigns error of the trial court in granting respondents' motions for involuntary dismissal of the action, asserting that as to each respondent he established a prima facie case of negligence. Under a motion for involuntary dismissal, pursuant to I.R.C.P. 41(b), testimony and all reasonable inferences therefrom must be viewed in light most favorable to the plaintiff, and the trial court should not grant the motion unless as a matter of law no recovery can be had upon any view which properly can be taken of the evidence. Whitney v. Continental Life and Accident Company, 89 Idaho 96, 403 P.2d 573 (1965); Callahan v. Wolfe, 88 Idaho 444, 400 P.2d 938 (1965); Stratton v. Stratton, 87 Idaho 118, 391 P.2d 340 (1964); Sturgis v. Garrett, 85 Idaho 364, 379 P.2d 658 (1963); Shaffer v. Adams, 85 Idaho 258, 378 P.2d 816 (1963); Smith v. Big Lost River Irrigation District, 83 Idaho 374, 364 P.2d 146 (1961); Bancroft v. Smith, 80 Idaho 63, 323 P.2d 879 (1958); Buffat v. Schnuckle, 79 Idaho 314, 316 P.2d 887 (1957); Luis v. Ada Lodge #3, Ind. Order of Odd Fellows, 77 Idaho 392, 294 P.2d 1095 (1956); Watkins v. Watkins, 76 Idaho 316, 281 P.2d 1057 (1955); Koser v. Hornback, 75 Idaho 24, 265 P.2d 988, 44 A.L.R.2d 1015 (1954); Nissula v. Southern Idaho Timber Protective Ass'n, 73 Idaho 37, 245 P.2d 400 (1952).

Actionable negligence consists of a duty or obligation of the defendant to protect the plaintiff from injury, failure to discharge that duty, and injury resulting therefrom. H. J. Wood Co. v. Jevons, 88 Idaho 377, 400 P.2d 287 (1965); Chatterton v. Pocatello Post, 70 Idaho 480, 223 P.2d 389, 20 A.L.R.2d 783 (1950). The complaint must disclose these essentials and the evidence must support them to allow recovery. H. J. Wood Co. v. Jevons, supra.

With the foregoing principles in mind, we approach appellant's first assignment, that the trial court erred in dismissing the action as to respondent Jarnagin.

Appellant caused the testimony of the general superintendent of respondent railway company to be taken by written interrogatories propounded under I.R.C.P. 33, which appellant introduced and read in evidence. Such evidence shows that the railway company's employees and agents removed the cattle guard on December 3, 1962, for purposes of snowplowing; such officer stated he did not know that cattle were in the pasture or to whom they belonged.

During the course of the trial when the interrogatories and answers thereto were being read into evidence, the court admonished the jury that the evidence so adduced would apply only to respondent railway company and not to respondent Jarnagin and further, that the jury was not to regard the evidence so adduced either for or against Jarnagin.

On this appeal, however, respondent Jarnagin seeks to apply as an adverse party in his favor the evidence adduced by virtue of those interrogatories, pointing to I.R.C.P. 26(d)(2), which permits the use of such a deposition (deposition of a party who at the time of its taking was an officer, director or managing agent of a corporation) by an adverse party for any purpose, respondent...