Zolber v. Winters

• Decision Date: 22 October 1985
• Docket Number: No. 15587,15587
• Citation: 109 Idaho 824,712 P.2d 525
• Parties: Clayton ZOLBER, Cross Claimant-Respondent. v. James WINTERS and Builders Transport, Cross Defendants-Appellants.
• Court: Idaho Supreme Court

Page 525

712 P.2d 525

109 Idaho 824

Clayton ZOLBER, Cross Claimant-Respondent. v. James WINTERS and Builders Transport, Cross Defendants-Appellants.

No. 15587.

Supreme Court of Idaho.

Oct. 22, 1985.

Rehearing Denied Jan. 31, 1986.

Reed Clements, of Clements, Brown & McNichols, Lewiston, for cross defendants-appellants.

Nick Chenoweth, Orofino, for cross claimant-respondent.

SHEPARD, Justice.

This is an appeal from a denial of a motion for judgment notwithstanding the verdict or a new trial following a jury trial and verdict in favor of Clayton Zolber, cross claimant-respondent. We affirm in part, reverse in part, and remand for a new trial only on the issue of damages.

U.S. Highway 12 runs eastward through a portion of Idaho to the Idaho-Montana state line. A roadside cafe, the Syringa Cafe, is located beside U.S. Highway 12. On a day in November 1978, cross defendant-appellant Winters had parked a truck and two trailer combination in the cafe parking lot. He intended to enter U.S. Highway 12 and proceed easterly. He made a left turn from the parking lot onto the easterly lane of Highway 12. Two other trucks had preceded Winters from the parking lot and were traveling east on U.S. Highway 12. Some distance east of the cafe is the crest of an incline in U.S. Highway 12. At that same time, cross claimant-respondent Zolber was driving a truck in a westerly direction approaching the Syringa Cafe. As Zolber drove over the crest of the incline in the road, he saw Winters' truck, one-third of which was still in the westbound lane. Zolber, apparently unable to stop his vehicle, went off the road, through a ditch, across the parking lot, and struck a truck owned by Donald Denton. There was no contact between the Zolber and Winters' trucks.

Denton brought suit against Zolber, Winters, and Builders Transport, to recover for damages to his truck. The parties settled with Denton and trial was held on the cross claim of Zolber for the damages he sustained in the accident.

At trial, Zolber contended that the two trucks which had preceded Winters out of the cafe parking lot had obstructed Zolber's view of Winters' truck until Zolber was too close to Winters' truck to be able to stop. Winters argued at trial that the two preceding trucks supposedly obstructing Zolber's view were far enough eastward on Highway 12 to be of no obstruction to the view and that Zolber could have and should have seen Winters' truck on the highway, and that Winters was entitled to rely upon the ability of Zolber to slow or stop his truck.

The jury verdict was split nine to three in favor of Zolber. Zolber's damages were assessed at $400,000. Zolber was found to have been 39% negligent. Defendants moved for a judgment n.o.v., or in the alternative for a new trial, which motion was denied.

Appellants first contend that the district court erred in refusing to give their Requested Instruction No. 20, which reads:

" 'DEFENDANTS REQUESTED INSTRUCTION NO. 20

"You have been instructed as to the provisions of Idaho Code § 49-644 in effect at the time of this accident provided that:

'The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed.'

"With regard to this statute, you are further instructed that when one has lawfully gained entry upon the highway from another roadway, vehicles approaching in the interim period between commencement and completion of the crossing would be under a duty to either slow or stop to avoid a collision." (Emphasis added.)

Rather, the court first instructed the jury as to the provisions of I.C. § 49-644, and then instructed:

"You are instructed that when one has entered a highway in compliance with the law and in a non-negligent fashion, drivers approaching in the interim period between commencement and completion of the entry, are required to exercise ordinary care for the safety of all." (Emphasis added.).

It is clear that on appeal, instructions must be viewed as a whole to determine whether the jury was properly and adequately instructed. Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 (1970); Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967). If the court's instructions, considered as a whole, fairly and adequately present the issues and state the applicable law, no error is committed. Pacific Northwest Pipeline Corp. v. Waller, 80 Idaho 105, 326 P.2d 388 (1958); Union Seed Co. of Burley v. Savage, 76 Idaho 432, 283 P.2d 918 (1955).

Appellants argue that under I.C. § 49-644 Zolber was required by law to operate his truck at a safe and appropriate speed given the hazards which may exist as to pedestrians or other traffic or weather or highway conditions. They further assert that Winters, after determining that there were no approaching vehicles in view was entitled to enter the highway in reliance upon the duty of Zolber to slow or stop to avoid an accident. Therein appellants rely upon Reed v. Green, 90 Idaho 526, 535, 414 P.2d 445, 450 (1966), which states:

"With no approaching vehicles in view, Green had the right to commence crossing the highway at the time he did. The distance of his unobstructed view was such that it cannot be said he was negligent. In crossing the highway under these circumstances, he was fully complying with the law. After once lawfully gaining entry upon the highway, vehicles approaching in the interim period between commencement and completion of the crossing were under the duty either to slow down or stop." (Citations omitted.)

Therefrom, appellants argue that Reed requires drivers of approaching vehicles, as was Zolber, not only to exercise ordinary care but specifically to either slow or stop to avoid a collision.

As stated in Davis v. Bushnell, 93 Idaho at 531, 465 P.2d at 655:

"We do not agree that the court's instruction set out above requires a higher degree or standard of care than ordinary care. There is no inconsistency between I.C. § 49-735 and the instruction of the court. Both require a standard of due care dependent upon the particular facts then existing. Ordinary and due care may mean different conduct under different circumstances. A driver must, for example, exercise due care when driving in a blinding snowstorm with an extremely slippery highway and also exercise due care when driving in sunny weather on clear and dry pavement. However, it cannot be said that conduct which constitutes due care under the one situation would also be due care under the other. That standard is no different when applied to the case at bar. The instruction as given by the court was a clear and correct statement of the law and did not constitute error."

We hold that the jury instruction in the instant case was correct in the utilization of the ordinary care standard. As stated in Holland v. Peterson, 95 Idaho 728, 731, 518 P.2d 1190, 1193 (1974):

"Although appellants requested instruction is a correct general statement of the law, Coughran v. Hickox, 82 Idaho 18, 348 P.2d 724 (1960), the court did not err in refusing to give it since it adequately covered the same subject matter in its instructions on negligence.... For the court to have given appellant's requested instruction would have added nothing new to the case and would merely have been redundant."

Appellants next assert error by the trial court in admitting, over objection, certain photographs and a videotape. The photographs and videotape were introduced during the testimony of a reconstruction expert. They were taken in November 1983, some five years after the accident, and were offered to illustrate the impact on the forward visibility of Mr. Zolber of the other vehicles in the oncoming lane of traffic.

Admittedly, the photographs and the videotape were posed and at variance with some of the circumstances existing at the time of the accident. Nevertheless, we hold that they were admissible under the standard of State v. Marlar, 94 Idaho 803, 809, 498 P.2d 1276, 1282 (1972):

"Relevancy as defined in the Idaho cases, encompasses two main aspects. The first, traditionally denominated 'materiality,' requires that the issue for which the specific evidence is offered to prove be a material issue in the case. The second aspect of relevancy concerns the probative value of the offered evidence. Evidence offered to prove a material issue in the case is not relevant unless it logically tends to prove or disprove that issue. G. Bell, Handbook of Evidence for the Idaho Lawyer, 101-02 (1957); McCormick, [Law of Evidence] at 314-15 [1954]."

As the court stated in State v. Kleier, 69 Idaho 278, 286, 206 P.2d 513, 518 (1949):

"Photographs and pictures relevant to describe a person, place or thing are admissible for the purpose of explaining and applying the evidence and assisting the jury in understanding the case. Such evidence is used to clarify and present a more comprehensive explanation of the physical facts than could be obtained from the testimony of the witnesses.

"Where photographs are used to throw light on the issues and surrounding circumstances, such photographs are properly admitted." (Citations omitted.)

Appellants assert that the exhibits were prejudicial in that they did not fairly and accurately represent the conditions as seen by the witness and that there was substantial variance from the circumstances existing at the time of the accident. It is established that the use of exhibits by a testifying witness in order to supplement or illustrate events is proper insofar as the differences between the events depicted and the events observed are explained by the witness and the exhibit is not deceptive. McKee v. Chase, 73 Idaho 491, 253 P.2d 787 (1953). As explained by the Montana court in Brown v. North American Manufacturing Co., 176 Mont. 98, 576 P.2d 711, 722 (1978) (overruled on other grounds, Zahrte v. Sturm, Ruger & Co., 661 P.2d 17 (Mont.1983)):

"Particularly as...