Wyland v. Twin Falls Canal Co.

• Decision Date: 25 February 1930
• Docket Number: 5342
• Citation: 285 P. 676,48 Idaho 789
• Parties: VIOLA WYLAND, ELMER E. WYLAND, EDITH F. WYLAND, BEULAH B. WYLAND, an Infant, by VIOLA WYLAND, Her Guardian ad Litem, IDA WYLAND, an Infant, by VIOLA WYLAND, Her Guardian ad Litem, FLOSSIE F. WYLAND, an Infant, by VIOLA WYLAND, Her Guardian ad Litem, Respondents, v. TWIN FALLS CANAL COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

285 P. 676

48 Idaho 789

VIOLA WYLAND, ELMER E. WYLAND, EDITH F. WYLAND, BEULAH B. WYLAND, an Infant, by VIOLA WYLAND, Her Guardian ad Litem, IDA WYLAND, an Infant, by VIOLA WYLAND, Her Guardian ad Litem, FLOSSIE F. WYLAND, an Infant, by VIOLA WYLAND, Her Guardian ad Litem, Respondents, v. TWIN FALLS CANAL COMPANY, a Corporation, Appellant

No. 5342

Supreme Court of Idaho

February 25, 1930

APPEAL AND ERROR-MOTION FOR NONSUIT-WHEN GRANTED-PERSONAL INJURY-AUTOMOBILES-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-DAMAGES-ELEMENTS OF-MEDICAL AND FUNERAL EXPENSES-DECEASED'S SERVICE TO FAMILY-MOTION TO STRIKE TESTIMONY.

1. Motion for nonsuit by defendant which is renewed at conclusion of defendant's testimony, properly raises question of evidence or lack of evidence in support of issues.

2. Plaintiff should not be nonsuited unless it appears that the evidence in his behalf, upon the most favorable construction which the jury could give it, would not warrant verdict for him.

3. In action for death of pedestrian struck by truck on street about sixty feet beyond intersection, in which truck driver admitted he failed to look ahead after crossing intersection issue of truck driver's negligence and contributory negligence of deceased was for jury, and evidence was sufficient to sustain verdict against owner of truck for damages.

4. Medical and funeral expenses constitute proper element of damages in action for death, if it appears that plaintiff is obligated for medical and funeral expenses.

5. Court in action for death did not err in instructing that jury might consider as element of damages value of deceased's services in "the superintendence and attention to and care of his family and education of his children," under C. S., secs. 6643, 6644, permitting recovery of such damages as may under all the circumstances of the case be just, where court also told jury that damages should be assessed with reference to pecuniary loss sustained by wife and children of deceased.

6. Where cross-examination of deceased's son concerning testimony as to his father's yearly earnings, in action for death, did not establish that son's knowledge or conclusions were altogether based on hearsay, it was not error to deny motion to strike son's testimony.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action for damages for death. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs awarded to respondents.

Bothwell & Chapman, for Appellant.

Negligence is the basis for recovery in an action for damages for personal injuries, and the negligence must be proved by a preponderance of the evidence, as the proximate cause of the injuries complained of, and where there is a failure of proof, it is error for the court to refuse a requested nonsuit or directed verdict made at the close of all the evidence. (Chicago, R. I. & P. R. Co. v. West, 124 Okla. 147, 254 P. 91; Thomas v. National Gas Producing Co., 9 La.App. 680, 121 So. 649; Muggenburg v Fink, 166 Minn. 411, 208 N.W. 134; Klink v. Bany, (Iowa) 224 N.W. 540.)

In an action for damages for personal injuries received by a person in a collision with a motor vehicle, a person who steps from a zone of safety into a zone of danger in attempting to cross a city street between intersections without looking in the direction from which traffic could be expected, or after having looked in that direction steps heedlessly in the path of an oncoming automobile, when such person's view is wholly unobstructed and he is without physical infirmities, is guilty of contributory negligence proximately causing his injury; and the driver of the automobile traveling upon the upper side of the street at a lawful rate of speed, with brakes in proper condition, on a street where there is no traffic and no obstruction, in broad daylight, and keeping a proper lookout upon the street, and who does all in his power to avoid striking the pedestrian, is not guilty of negligence. (Mathes v. Schwing, (La. App.) 119 So. 577; Johnson v. Item Co., 10 La. App. 671, 121 So. 369; Rang v. Klawun, 198 Wis. 1, 223 N.W. 121; Harrison v. Carlisle, 9 La. Ann. 517, 121 So. 216; Thomas v. National Gas Producing Co., 9 La.App. 680, 121 So. 649; Neeb v. Jacobson, 245 Mich. 678, 224 N.W. 401; Brickell v. Trecker, 176 Wis. 557, 186 N.W. 593; Lord v. Stacy, 68 Cal.App. 517, 229 P. 874.)

In an action for damages occasioned by the death of a person, not a minor, brought by his heirs or personal representatives, medical, hospital, nurse, ambulance and burial expenses cannot be recovered unless such expenses have been paid by the heirs or representatives or unless they are liable for their payment. (Jutila v. Frye, 8 F.2d 608; Regan v. Davis, 290 Pa. 167, 54 A. L. R. 1073, 138 A. 751; Salmon v. Rathjens, 152 Cal. 290, 92 P. 733; C. S., sec. 6644; Cal. Code Civ. Proc., sec. 377.)

In an action under C. S., sec. 6644, for wrongful death, the damages must be confined to the actual pecuniary loss sustained by the plaintiff, or those represented by him, as distinguished from mental anguish, sorrow, solatium for wounded feelings, grief or punishment. (Dickinson v. Southern P. Co., 172 Cal. 727, 158 P. 183; Morgan v. Southern P. Co., 95 Cal. 501, 30 P. 601; Munro v. Pacific Coast Dredging & R. Co., 84 Cal. 515, 18 Am. St. 248, 24 P. 303; Redfield v. Oakland Consol. St. Ry. Co., 110 Cal. 277, 42 P. 822.)

Turner K. Hackman, for Respondents.

Where plaintiff's evidence makes a prima facie case, a motion for nonsuit is properly denied, for "defendant must be deemed to have admitted all the facts of which there is any evidence, and all the facts which the evidence tends to prove it, and this evidence must be, and will be, most strongly interpreted against the defendant." Citing a number of decisions of this court. (Schleiff v. McDonald, 37 Idaho 423, 216 P. 1044.)

It is error to sustain a motion for a nonsuit if, under the evidence, it proves or tends to prove a prima facie case. (Dellwo v. Petersen, 32 Idaho 172, 180 P. 167.)

When the parties to this action appeared before court and jury, both sides were confronted with an assumption of law which was that "both the plaintiff and the defendant must be held or deemed to have exercised due care as a matter of law, and not as a matter of proof; so that due care of either party need not be proved--such proof is not demanded, but the plaintiff claims that the defendant comes within an exception to the general rule. The existence of the exception must be proved by the plaintiff by a preponderance of the evidence--such proof is demanded of him. This is a 'flexible assumption.'"

"In a negligence case, if the defendant claims that the plaintiff comes within the exception to the general rule applicable to him (the plaintiff), the defendant must prove the existence of the exception, by a preponderance of the evidence. That occurs in the defense of contributory negligence.

"The defense of contributory negligence is a form of confession and avoidance." (The Law of Proof in Judicial Proceedings, by Fisk, pp. 25, 27, 51; Clark v. Los Angeles & S. L. R. Co., (Utah) 275 P. 582; Rush v. Lagomarsino, 196 Cal. 308, 237 P. 1066.)

"The driver of an automobile has no right to assume that the road is clear, but under all the circumstances and at all times he must be vigilant and must anticipate and expect the presence of others." (Minor v. Foote, (Cal. App.) 280 P. 197, 199; Pritchard v. Hockett, 140 Wash. 499, 249 P. 989.)

"It is the duty of the driver of an automobile, where the view is unobstructed, to see persons on the road in front of the machine." (Nichols v. Nelson, 80 Cal.App. 590, 252 P. 739.)

GIVENS, C. J. Budge, T. Bailey Lee, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, C. J.

While walking on a public highway in the city of Twin Falls Oscar S. Wyland was run down and injured by a Ford truck driven by an employee of defendant, from which injuries he later died. Alleging negligence, plaintiffs instituted this action under C. S., sec. 6644, and obtained a judgment awarding them $ 5,000. Defendant contends that the evidence does not support the verdict; that defendant or its agents were not shown to be negligent, and that contributory negligence, as a matter of law, should be imputed to the deceased Wyland.

The accident occurred on 6th Avenue West in Twin Falls. This avenue is in one of the outlying districts of the city in a sparsely settled neighborhood. The entire right of way is 80 feet wide but at the time of the accident the traveled portion was only 16 or 18 feet wide. The rest of the highway was covered with weeds. There were no sidewalks along the street where the accident occurred.

Defendant's truck, driven by one Riles, was proceeding north on this street at a speed of 15 or 20 miles an hour. According to Riles' testimony, as he approached the intersection of 6th Avenue West and 3rd Street West, he looked ahead and saw no pedestrians. He then looked to the right and left on 3rd Street West--the street he was about to cross--and did not again look ahead until he had traveled about 60 feet beyond the intersection when he suddenly became aware of the presence of a pedestrian immediately in front of him, about six feet away. Wyland was struck in the back by the right fender of the car, which knocked him to the ground in such a way that the right wheels passed over his body. He was found lying in the traveled portion of the highway, about three feet from its edge. He received, among other injuries, severe injuries to his head from which he died several weeks later.

The tracks of the truck indicated that it had skidded somewhat after hitting Wyland and turned slightly to the left. It had been brought to a stop in the middle of the...