Fawcett v. Irby

436 P.2d 714, 92 Idaho 48, 1968 Ida. LEXIS 244

• Court: Idaho Supreme Court
• Decided: January 29, 1968
• Docket: 9994
• Status: Published

Opinions

TAYLOR, Chief Justice.

About 4:30 p. m. July 14, 1964, a four-car collision occurred on U. S. Highway 10 approximately four-tenths of a mile west of the city limits of Kellogg, Idaho. Plaintiff (appellant) Fawcett was driving his own automobile and plaintiff (appellant) LeDuc was a passenger in Fawcett’s car. Both were injured and each filed a separate action for personal injuries, and Fawcett claimed damage to his automobile. The plaintiffs alleged that the injuries arose out of negligent operation of a motor vehicle driven by defendant (respondent) Harold Irby and owned by defendant (respondent) Sweets Candy Co. Defendants denied the allegation of negligence and alleged the defenses of contributory negligence, assumption of risk, sudden emergency, and unavoidable accident.

Defendants also filed a third-party complaint for indemnity against Goodfellow Brothers, a corporation. This company had been performing construction work on the highway in the area where the accident occurred. The third-party complaint was later dismissed and no appeal was taken from that order.

The two actions were consolidated for trial. Upon trial the jury rendered a general verdict for defendants, upon which judgment was accordingly entered. Plaintiffs’ motion for judgment notwithstanding the verdict or for a new trial was denied. Plaintiffs brought this appeal from the judgment on the verdict and from the order denying a new trial.

At the place where the accident occurred, U. S. Highway 10 was under construction as a four-lane divided highway. At the time of the accident, however, the two eastbound lanes were not open to traffic and the two westbound lanes were being used for two-way traffic. Defendant Irby, driving a vehicle belonging to his employer, Sweets Candy Co. and within the scope of his employment, was traveling west on the highway. Plaintiffs Fawcett and LeDuc were traveling east on the highway, Fawcett driving and LeDuc, his passenger, sitting on the righthand side of the front seat. There were also other cars moving east ahead of Fawcett. Irby turned to his left from the westbound lane, and entered upon the eastbound lane to pass a slower moving westbound vehicle drawing a trailer-house, unaware of traffic approaching from the west. During the operation Irby was not looking forward, but was observing the vehicle which he was attempting to pass, to determine when he could return to the westbound lane. He continued driving west on the wrong side of the highway directly into the path of an automobile coming from the west, operated by one Roy Harvey. Harvey swerved to the right onto the shoulder of the road. The two cars sideswiped, the left rear side of each making contact. Irby tried to stop, but continued to move west and collided head on with a second eastbound car driven by one Floyd Merang. Fawcett was driving east following the Merang car. He was unable to avoid the Merang car and crashed into the rear end thereof. The accident occurred in daylight, the road was straight, dry, properly marked, and visibility was good. Traffic was fairly heavy in either direction. The evidence was conflicting as to the speed of the Fawcett vehicle; immediately before the collision it was estimated as low as 35 miles per hour and as high as 50 miles per hour. At the instant of impact its speed was estimated from 5 to 30 miles per hour. The distance between the Merang and Fawcett automobiles just prior to the emergency was between 75 and 100 feet.

Fawcett admitted that the first he realized an accident was imminent was when he observed flying glass from the Irby-Merang collision. Despite the fact he was looking forward prior to and during the occurrence he did not notice the Irby and Harvey cars nor did he see the Merang car slow down, skid or exhibit its brake lights. However, there was evidence that the Merang vehicle skidded in attempting to stop and that its brake lights were functioning properly.

LeDuc was sitting in the front passenger seat in such way that he was facing Fawcett and did not have the road in view as the accident developed. He and Fawcett had been conversing while driving along. He observed an expression of alarm cross Fawcett’s face. He then looked forward in time to see the collision between the Irby and Merang cars. However, in a deposition introduced during the trial LeDuc had stated that he had seen Irby’s car pull out of its proper lane prior to the collision. During the trip LeDuc had made no complaints or comments about the manner of Fawcett’s driving. There was conflicting evidence as to whether Merang’s car was moving forward, stopped, or moving backwards (as a result of its collision with the Irby vehicle) when Fawcett’s car struck its rear end.

Plaintiffs urge that the court erred in refusing to direct a verdict in their favor at the close of the evidence, and in denying their motion for judgment notwithstanding the verdict. In support of their position, plaintiffs contend there was no showing of contributory negligence on their part. The evidence of contributory negligence on the part of the plaintiffs was meager, but sufficient that submission of this issue to the jury was not reversible error. A motion for a directed verdict or judgment notwithstanding the verdict admits the truth of the adverse evidence and every inference of fact which may be legitimately drawn therefrom. Loomis v. Hannah, 89 Idaho 358, 404 P.2d 568 (1965); Foster v. Thomas, 85 Idaho 565, 382 P.2d 792 (1963). Where reasonable minds may differ as to the conclusion to be drawn from the evidence, the issue of contributory negligence is properly one for determination by the jury. Kelley v. Bruch, 91 Idaho 50, 415 P.2d 693 (1966); Foster v. Thomas, supra.

Giving of instruction 33A is assigned as error. This instruction contained a proper statement of the duty of a driver following a vehicle ahead, and the distances required for stopping a vehicle traveling at various speeds mentioned in the evidence, all as provided by the Idaho Drivers Handbook. The handbook is judicially noticed. Howard v. Missman, 81 Idaho 82, 337 P.2d 592 (1959). The instruction was pertinent to the issues tried and was properly given.

At the time of the accident, Fawcett was an insurance agent for the Monarch Life Insurance Company. LeDuc was an agency supervisor for the same company. Fawcett’s job that day (and the purpose of the trip) was to sell insurance. LeDuc’s job was to train Fawcett and to assist him in selling insurance. There was conflicting evidence on the issue of whether or not LeDuc had any supervisory authority over Fawcett. By uncontroverted evidence it was shown that Fawcett received no monetary benefit from Monarch Life Insurance Company for the use of his car.

The giving of instruction No. 25 was not error. This instruction contained a correct statement of the law of joint venture as applied to plaintiffs Fawcett and LeDuc.

Plaintiffs assign as error the overruling of their objections to testimony on cross-examination of LeDuc as to other accidents and injuries suffered by him. This evidence was material to the issue of the extent of LeDuc’s injuries which were attributable to the accident out of which this action arose. Its admission was not erroneous.

Plaintiffs complain of the submission to the jury of exhibits which were introduced by third-party plaintiffs and third-party defendants notwithstanding the fact that the third-party action had been dismissed prior to the submission of the cause to the jury. Plaintiffs urge that such exhibits were not material or relevant to any issue submitted to the jury and could serve only to confuse the jury. However, plaintiffs made no objection to the exhibits either before or after the third-party action was dismissed. Such objections cannot be urged for the first time on appeal. Crosby v. Putnam, 89 Idaho 45, 402 P.2d 389 (1965); Blue Note, Inc. v. Hopper, 85 Idaho 152, 377 P.2d 373 (1962); Fuchs v. Lloyd, 80 Idaho 114, 326 P.2d 381 (1958); cf. McLean v. City of Spirit Lake, 91 Idaho 779,430 P.2d 670 (1967).

Plaintiffs assign as error the denial of their motion to separate for trial the third-party action from their action against defendants. The consolidation or severance of several claims arising out of the same incident is within the sound discretion of the trial court. Absent abuse of such discretion, and no abuse is shown here, this court will not upset the district court’s resolution of the issue. Crosby v. Putnam, supra; Blue Note, Inc. v. Hopper, supra; Branom v. Smith Frozen Foods of Idaho, Inc., 83 Idaho 502, 365 P.2d 958 (1961); Fuchs v. Lloyd, supra; cf. McLean v. City of Spirit Lake, supra; IRCP Rules 20(a), 20(b), 42(a), 42(b).

Plaintiffs argue that instructions 18, 19, 20, 21 and 22, concerning negligence of a passenger, were so cumulative and repetitious as to prejudice their cause. A reading of these instructions reveals that the instructions covered several different aspects of the law of negligence as applied to a passenger in a motor vehicle. Instruction 21 is repetitive of the law covered by instruction 20.

“In explaining and clarifying the issues and defining terms in an action involving negligence, contributory negligence, proximate cause, and burden of proof, some repeated reference to these terms and issues is necessary, [cases cited]. In his instructions the trial judge should avoid unnecessary repetition and make the instructions as brief and concise as possible. However, clarity is of paramount importance and is not to be sacrificed to brevity.” Stuchbery v. Harper, 87 Idaho 12, at 20, 390 P.2d 303, 307 (1964).

Domingo v. Phillips, 87 Idaho 55, 390 P.2d 297 (1964). Cf. Addy v. Stewart, 69 Idaho 357, 207 P.2d 498 (1949).

The trial court correctly refused to give appellants’ requested instruction that any contributory negligence of William Fawcett could not be imputed to Ed LeDuc. If a joint enterprise exists between a car driver and a passenger, the contributory negligence of the driver may be imputed to the passenger. Grant v. Clarke, 78 Idaho 412, 305 P.2d 752 (1957). This court has defined joint enterprise as follows:

“ * * * The general rule appears to be that in order to constitute a joint enterprise with relation to the operation of an automobile there must be a joint interest or community of interest in the purpose of the undertaking, and an equal right, express or implied, to exercise some control over the conduct of each other in respect thereto, [cases cited]” Griffin v. Clark, 55 Idaho 364, 375, 42 P.2d 297, 302 (1935).

There was sufficient evidence introduced to require submission to the jury of the issue of joint enterprise between the plaintiffs Fawcett and LeDuc.

Plaintiffs urge that instruction 26 was erroneous.¹ This instruction contains portions of the statute defining the basic rule governing speed and conduct of drivers upon the state highways. Paragraph (a) was pertinent to the issues and was properly given. The reference in paragraph (c) to “grade crossing,” “intersection,” “railway grade crossing,” “hill crest,” “narrow or winding roadway,” “pedestrians,” should have been eliminated from the instruction, since none of such hazards existed at the time and place of the accident. The reference to “other traffic” and to “highway conditions” were pertinent in view of the evidence of heavy traffic, and the two-way use of the highway at that point. However, the instruction is not reversibly erroneous, since it does not appear that the jury could have been led to believe from the instruction that any of the other special hazards existed at the time and place of the accident. Gardner v. Hobbs, 69 Idaho 288, 206 P.2d 539, 14 A.L.R.2d 478 (1949); IRCP Rule 61.

Plaintiffs also assign as error the court’s instructions 23 and 24, giving to the jury the law on the subject of assumption of risk. As applied to plaintiffs, these instructions were erroneous and prejudicial. The defense of assumption of risk presupposes that the plaintiffs had some actual knowledge of the danger, and understood and appreciated the risk therefrom and voluntarily exposed themselves to such danger. Metz v. Haskell, 91 Idaho 160, 417 P.2d 898 (1966); Hodge v. Borden, 91 Idaho 125, 417 P.2d 75 (1966); Domingo v. Phillips, 87 Idaho 55, 390 P.2d 297 (1964). The defense was properly pleaded in this case, but there was no evidence to support it. The evidence did not show that plaintiffs had prior knowledge of the danger confronting them as they proceeded on their proper side of the highway, nor is there any evidence that they voluntarily exposed themselves to the danger which actually confronted them.

Instruction 24 advised the jury that the defense of assumption of risk did not require any showing that the assumption of the risk was the proximate cause of the injury and that if the risk of the danger was assumed it would bar recovery even though the assumption or risk played no part in causing the accident, except merely to expose the plaintiffs to danger. Thus the jury could have been influenced to find against plaintiffs because of acts or conduct on their part which did not proximately cause or contribute to the accident.

Plaintiffs complain that instruction 36² expresssing the doctrine of sudden emergency was not specifically made applicable to plaintiffs only. Defendants were not entitled to the benefit of the doctrine because it was the negligence of Irby in turning onto the wrong side of the highway in the face of oncoming traffic, that gave rise to the emergency. Plaintiffs were entitled to the benefit of the doctrine, in event the jury found there was no prior negligence on their part which gave rise to the emergency they later faced. Plaintiffs are in no position to complain of the instruction, because it was requested by them, as given. Werth v. Tromberg, 90 Idaho 204, 409 P.2d 421 (1965). However, on the new trial it should be revised to expressly apply to plaintiffs only.

The judgment is reversed and the cause is remanded for a new trial.

Costs to appellants.

SMITH and McQUADE, JJ., and NORRIS, D. J., concur.

1 . “Section 49-701, Idaho Code, provides:

“(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.

* :»i * * *

“(c) The driver of every vehicle shall, consistent with the requirements of paragraph (a), drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, * * * when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.”

2 . You are instructed that a person who, without negligence on his part, is suddenly and unexpectedly confronted with peril arising from either the actual presence or the appearance of imminent danger to himself or to others, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments. His duty is to exercise only the care that an ordinarily prudent person would exercise in the same situation.