Home/Idaho Supreme Court/Asumendi v. Ferguson

Asumendi v. Ferguson

65 P.2d 713, 57 Idaho 450, 1937 Ida. LEXIS 58
Idaho Supreme Court·Decided February 26, 1937·No. Nos. 6308 and 6309.·Published·Cited by 23 cases

Opinion

GIVENS, J.

September 22, 1934, one Joe Goiri and his wife had his car parked facing east on the south side of the main highway between Boise and Eagle, being State Highway No. 44, at which point the highway is paved or oiled to a width of 18 feet, with a comparatively level berm or shoulder on each side of the highway, and of approximately the same level to a width of 6 feet on the south side of the oiled pavement, sloping slightly down into a borrow-pit or highway drain ditch on each side. Goiri’s car was parked so that the left wheels were four or five inches to the south of the oiled portion of the highway. Immediately to the north was a private roadway leading from the highway into the home of the Asumendis’. The west side of this driveway intersecting the highway approximately straight north of the front of Goiri’s car.

*455 Goiri and his wife had been visiting with Mrs. Asumendi and two of her sons, Basilio Jose aged two years and three months, now deceased, and Jesus,- age three years and five months. Goiri and his wife had left the Asumendis’ and crossed the highway to their car. Mrs. Goiri was in the ear, and Mr. Goiri was standing at the front left hand corner of his car talking to Mrs. Asumendi who was standing with her two children on the track north of the highway. Goiri and Mrs. Asumendi were thus talking across the highway. While so talking, little Basilio Jose darted from his mother’s side and started to run across the highway to Mr. Goiri. Whether Mrs. Asumendi saw appellant’s truck which was approaching from the west no one will ever know, but in any event she ran screaming after the little child endeavoring to catch him, being about 6 feet behind him. As she and the child reached a point evidently about a few inches south of the center line of the highway, they were struck by the truck. The child thrown east and south a distance of approximately 15 feet, the mother partly thrown or dragged east and slightly south a distance of 58% feet from the point where pools of blood indicated the child lay. The truck continued on a distance of approximately 116 steps or 348 feet from the point of contact.

Pools of blood on the highway noticed immediately after the accident, indicated the places where the bodies were found, illustrated in plaintiff’s exhibit “3,” attached hereto, a photograph taken shortly after the accident, showing by man “M” the point of contact, man “K” the place where the child lay, and the man “J” where the mother lay. Goiri testifying without dispute that- the mother and child had reached a point north and in a direct line with his car at the time the truck struck them.

*456

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Asumendi v. Ferguson, 65 P.2d 713, 57 Idaho 450, 1937 Ida. LEXIS 58 (Idaho 1937).

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