Ferbrache v. Dillon
597 P.2d 40
Idaho
1979
Check Treatment

*1 FERBRACHE, minor, by through Litem, his Guardian ad Elaine

Craig, Craig, Elaine as individual representative of the Es

tates of Calvin K. Ferbrache Ferbrache, deceased, Plaintiffs-Ap

pellants, Eugene Dillon,

J. DILLON and Colleen wife, Eugene

husband and and J. Dillon Dillon, guardian Kathy

and Colleen

Dillon, minor, kin heir and next of Dillon, deceased, Kathy Estate of Dillon,

and the Estate of de

ceased, together Does with John One

through Five, Representatives Personal Kathy Dillon, Estate of Defend

ants-Respondents.

No. 12443.

Supreme Court of Idaho.

July *2 approaching a airport was Boise and he had testified that curve.

gradual Steven car speedometer and that the observed mph. He 60 and traveling between was been uncomfortable that he had testified no that he had made but with at the The limit objection. posted highway although mph, time was 55 testimony The designed mph. was for seat front indicated someone and stated, “Hey, airplane,” look at driver, car, including everyone Jon N. Wyman, Wyman Wyman, & airplane left at an Kathy, looked to the Boise, plaintiffs-appellants. for landing taking or off. which was either Barber, Burke, Phillip Elam, Jep- M. is no evidence in the record indicat- There Boise, pesen, Boyd, Evans & for defendants- persons of the seated in ing which three respondents. this At' seat made that statement. front thereafter, immediately same time BAKES, Justice. curve, to left negotiate car failed appeal wrongful This involves for actions road, flipped and went into a “broadslide” personal injuries resulting death and from was end times. There end over several appellant automobile accident. Plaintiff Kathy, the car indication that after some Elaine Craig recovery wrong- seeks for road, to the car had left the had tried turn ful death of Bryce her sons Calvin K. and and that this action highway back onto son, appel- Ferbrache. plaintiff Her other and may have the vehicle slide caused Ferbrache, lant Steven seeks to recover for police testi- investigating roll. The officer personal injuries he sustained. The suit traveling about 65 fied that the car was brought respon- was against defendant freeway. Only mph at the time left the Dillon, Eugene parents dents and Colleen sur- Marc Ferbrache and Simmons Steven Dillon, theory Kathy on a of vived. imputed negligence as of the vehicle owners against suit plaintiffs brought The Kathy’s and as next kin or the trial August of 1976 a and in defendants representatives her A ver- estate. presentation Following held. was Calvin, Bryce dict found Fer- and Steven evidence, for a directed plaintiffs moved brache, automobile, and passengers in objected proposed to a instruc- verdict and Dillon, negli- Kathy equally all The court tion on negligence. gent. We reverse and remand. objec- and overruled the motion denied Dillon, high Kathy year old a seventeen special verdicts tion. The returned par- student, returning in her school was Calvin, Kathy and finding Dillon Steven State ents’ car Boise from the Idaho responsible for Bryce Ferbrache each boys who had been Penitentiary with five fixing involved and 25% of the passen- The playing with baseball Calvin, inpates. $7,500 the death of damages at for Calvin, Fer- Bryce gers were and Steven $5,000 $7,500 Bryce, for the death Stradley. brache, Terry Marc Simmons was injuries Judgment Steven. driv- and a licensed years Calvin was 16 plain- and the for the entered defendants old, was years er. was 13 a judgment n.o.v. tiffs’ motions for Terry was 17. Marc was bring plaintiffs trial The new were denied. does the evidence Terry appeal arguing driving, and Calvin and finding of contributo- support Marc, Bryce jury’s not seat. in the front sitting Bryce, Calvin part ry the back on the seat. and Steven were near and Steven west on Interstate 80 Ferbrache. traveling A passenger Kathy, in an to believe that automobile has would not exercise the care and caution for attend her duties as driver and safety his own a reasonably prudent operate Nor is there automobile. person of age the same maturity would evidence that were aware of immi- exercise in the same circumstances. Bell v. nent of which the driver was *3 241, Joint School Dist. 837, No. 94 Idaho 499 anything that to either of them did inter- (1972); P.2d 323 Hayslip George, v. 92 Ida fere of car. operation with the driver’s the 349, ho 442 P.2d (1968); 759 Ineas v. Union we the record Accordingly, find no basis in Co., 390, Pacific R. 72 R. Idaho 241 P.2d finding jury’s special for Calvin the verdicts (1952). 1178 Nevertheless, general as a rule Bryce contributorily negligent. and and the special in absence of circumstances However, Ferbrache Steven testified indicating presence the danger of imminent prior he that to the accident had observed or the negligence passenger of the a speedometer the was and that trav may rely on the driver attend to eling mph, speed 60 ex between and 65 a the operation of the operate vehicle and to mph. ceeding posted speed limit 55 it with due care. Vaughn See v. Murray, although Steven also that he had testified 456, 214 Kan. 521 (1974); P.2d 262 McGoth speed felt uncomfortable with that he had Wiles, 718, lin v. 207 Kan. 487 P.2d 533 objection. made no One inference from the (1971); Schuelke, 759, Paddock v. 81 N.M. evidence is that the excessive 473 P.2d (App.1970); 373 5 Blashfield Auto inju contributory factor in the accident and Practice, mobile Law (3d & 215.7 ed. § Accordingly, sup ries. the evidence would 1966). passenger’s A mere does inattention port a finding aware of not generally contributory negli constitute appreciated excessive and gence, although special circumstances and presented and that Steven was therefore the passenger’s awareness of certain dan contributorily negligent failing in to remon gers may impose greater standard care. against strate the excessive Jones, See Ballard v. 496, Ill.App.3d 21 316 speed. Williams, (1974); 281 N.E.2d v. Kindschi 86 special we ver- Accordingly, reverse 458, (1974); Blashfield, N.M. 5 finding Bryce dicts and Ferbrache Calvin supra, 215.23; Borden, at Hodge cf. § v. 91 ground 125, contributorily negligent on (1966) Idaho 417 (jury question P.2d 75 supported by are not evidence contributory negligence present where judgments in direct trial court to enter passenger sleep went to while riding with Craig, an favor of as the appellant allegedly driver). intoxicated With $7,500 representative, for these in the amount of principles mind, basic we turn now $7,500 an death of Calvin and death examination the record to deter of Bryce.1 mine whether there is substantial evidence to support jury’s finding of contributory Although sup there is evidence to negligence, recognizing that we will not set port special respect verdicts with aside a supported by verdict evi substantial negligence contributory Nelson, 293, dence. Stoddard v. 99 Idaho Steven, negligence of we conclude that our 581 (1978); P.2d Werry 339 Phillips v. Pe finding Bryce reversal of the verdict Co., 130, troleum 97 Idaho 792 Calvin contributorily-negligent undermines (1975). jury’s apportionment of this case there is no evidence that justice case and that the interests of In Calvin and any Ferbrache had require reason a new trial on limited issue. Although by parties Manual, parative Negligence appeal, (rev. not raised on 8.131 § may question 1978). case, there have been some whether We do not reach this issue in this however, should have been instructed to since deter- we conclude record apportion mine and finding fails to show basis for a that these passengers, Terry non-party passengers the other Stradley contributorily negli- Simmons, parties gent. Marc who were not to this generally Heft, action. See R. Heft & C. Cona- did, Lake, speculation say, for a if it which Riley v. 295 Minn. 203 N.W.2d See doubtful, failure to do so occa- is that his (1972); Piggly-Wiggly Mad- Caldwell mishap. quite It is obvious that Co., sioned the 145 N.W.2d 745 ison 32 Wis.2d Schwartz, erroneously given the issue of Comparative jury, (1966); Negli- V. awry1 went assess- (1974). passenger negligence, therefore remand gence, We 18.3 § group negligence because one of apportionment for a new trial on the seeing airplane, and group remarked at any negligence negligence of Steven allowed her attention youthful driver Kathy. controlling the duty of be diverted from her al- appellant. attorney No fees Costs to be law it cannot vehicle. As a matter of lowed. partic- of this in the circumstances said that year reasonably prudent ular case a J., J., DONALDSON, SHEPARD, automobile passenger back seat of a SCOGGIN, J., Pro Tem. concur. *4 under con- going speed at a moderate Justice, concurring and dis- BISTLINE, attempt back- compelled to trol would be senting. supervision seat over the driver. sets opinion of the Court been var- “Contributory negligence has attributing causa- special aside the verdicts defined, iously although the basic idea and 9 year tive 16 old Calvin negligence to v. the In Coulsen definitions is the same. view, year my similar treat- Bryce. old In Co., 47 Idaho Aberdeen-Springfield Canal special the verdict ment should be accorded (1929) ap- 633, 547 at 277 P. 542 at 619 purports to assess causa- insofar as it also following pears the definition: “ year old negligence tive to 13 Steven. negli- contributory ‘To constitute the gence there be a breach of Although opinion the states that must Court’s imposed upon persons to highway designed speeds up by law the hour, injury from protect themselves from per 70 miles this I would assume is another, that negligent act the fact that for logically concluded from neg- such breach must many years 1974 concur with shortage and until the oil ligence producing of the other in crisis, posted speed it was for a maximum * * injury complained of V per design capacity of 70 miles hour. If its established, Neitzel, imagine 39, were one would that “In Williamson v. 45 Idaho speed considerably 45, 689, (1927) would be in excess of appears P. 690 260 year boy enough following: 70. A 13 is old to be “ limits, cars, cognizant patrol of what con- general ‘A definition speeding testimony tickets. Steven’s that is contributory negligence stitutes seeing he was uncomfortable on do, omitting doing, it is the speedometer registered car’s 60-65 miles that which under the circumstances per long way hour falls a short amount- done, reasonable man would not have ing apprehended any to evidence that he do, to or would not have omitted to danger, any danger. or even that there was resulting to himself injury avoid 456, Vaughn Murray, v. 214 Kan. from the of the defendant. Moreover, (1974). prima facie so almost seem, per it would there is no se in a Co., 72 “And v. Union Pac. R. Stowers being high- driven at that on that 87, 1041, 97, (1951) Idaho 237 P.2d way. may worry that the vehi- There be contains discussion: following “ may stopped cle and ticketed for violat- be determining question ‘In energy-conservation imposed limit. contributory or- negligence, due care or Moreover, dinary prudence indulge even one to in under the circumstanc- es assumption only that Steven should is test. The presence have with the absence of pure remonstrated is awry hardly obviously open went is involved the action —but 1. That should children, proportionate the three have been doubt. Besides assessed their share of there were “group” negligence. They other children in the vehicle. two are not averse, however, granting conditions, to the adjudged by must I be am not issues, at surroundings circumstances and on all trial of an entire new time of accident whether under respondents’ understood I so believe _acted person such reasonably as a argument say at oral attorney acted, prudent person would have liability to assessing jury’s misfunction spilled over all passengers likelihood Hodge Borden, 125, v. 91 Idaho 417 P.2d 75 for the driver’s fault assessing into (1966). so, is a well- injuries. and it deaths and If case, In this unlike Bell Joint School mis- may have point, taken also District No. 94 Idaho damages set re- obligation its fired in (1972), boy right Steven had no of su- just compensation, fleeting pervision over the shown to authority have over driver

whatever. In gave Bell trial court instruction,

following foot- which this Court

noted opinion:

“The court’s instruction No. 16 as reads

follows: “ ‘Every person under all circumstanc-

es, and whether on pleasure, business or

must exercise ordinary care for his own

safety. This self-protection ap- of

plies only person to a who is the automobile,

driver of an but also person merely who is occupant such as guest passenger. or Idaho, of STATE “ ‘Whenever the conduct Plaintiff-Respondent, operation his becomes respect negligent negligent and such con- duct creates danger degree to the of sub- John A. SEIFART Robert jecting occupants to an unreasonable Stanford, Defendants, know, risk injury, occupants and the care, in the exercise ordinary ought know, expos- are unreasonably danger, they themselves to such are Stewart, Defendant-Appellant. Davis R.

then required, up in order to measure No. 13030. ordinary standard of care for their protection, own to conduct themselves Supreme Court Idaho. a person ordinary manner intelligence prudence would conduct July same himself under the or similar circum- Conduct, herein, may stances. as used action, inaction, protest

involve ” the passenger.’ (Emphasis silence of

added)

Bell, 94 Idaho at 499 P.2d at 326.

There is merit in the Court’s conclusion to entry judgment

direct the in plaintiffs’

favor for the amount of damages set for Bryce, deaths Calvin and judg- but damages

ment for Steven’s should also be

directed.