Linda S. GRIFFITH, Plaintiff-Respondent, v. William SCHMIDT and Jill Schmidt, husband and wife; Frank Schmidt and Jane Doe Schmidt, husband and wife, Defendants-Appellants.
No. 15617.
Supreme Court of Idaho.
June 18, 1985.
On Rehearing Feb. 20, 1986.
715 P.2d 905
Jon J. Shindurling, of May, May, Sudweeks, Shindurling & Stubbs, Twin Falls, for plaintiff-respondent.
BAKES, Justice.
A jury found plaintiff 80% contributorily negligent in a collision between her car and defendants’ horses which were loose on the highway at night. The trial court granted a new trial to plaintiff, which ruling the defendants have appealed. Defendants also appealed the giving of certain jury instructions in the event that the grant of the new trial is affirmed.
On the evening May 3, 1979, plaintiff, then eighteen years old, helped to organize a Saturday night party at a sportsmen‘s access to the Big Lost River off U.S. Highway 93, approximately 3 miles north of Mackay, Idaho. Plaintiff was among the first to arrive around 10:30 p.m. After a while plaintiff, who was driving her own automobile, returned to town with her brother and a girlfriend. They picked up a guitar, a beer for the brother, and two mixed drinks (screwdrivers) for the girlfriend. Having obtained these items, plaintiff and her passengers cruised the town and stopped to talk to two male friends who were in a pickup. Plaintiff informed the friends of the party at the sportsmen‘s access. Both vehicles left town at approximately the same time traveling north on
Plaintiff testified that she had just passed her friends in the pickup and had been looking back at the pickup when she turned her head forward just prior to colliding with two of defendants’ horses which were running loose on the highway. The car left the highway and traveled through a fence and field before coming to rest in a ditch. Plaintiff was rendered unconscious and was seriously injured with lacerations to the head and neck. The brother and girlfriend were in shock, but not seriously injured. The friends in the pickup removed the injured from the car and transported them to town where an ambulance with emergency personnel took them to hospitals in Arco and then to Idaho Falls. A deputy sheriff arrived at the scene after the injured were taken away. After he realized that the damaged car belonged to his stepdaughter, he left for the hospital without completing an investigation. The scene was then investigated the next afternoon by an Idaho state patrolman.
Plaintiff sued the owners of the horses, alleging that the horses were unlawfully on the highway due to defendants’ negligence. At trial plaintiff‘s position was that defendants were strictly liable, barring contributory negligence as a defense. Defendants’ position was that all reasonable care was exercised in enclosing the horses and that plaintiff was contributorily negligent based on allegations of exceeding the speed limit, driving inattentively, driving under the influence of alcohol, racing and failing to maintain brakes. Prior to submitting the case to the jury, the trial court ruled that defendants were negligent as a matter of law regardless of reasonable care exercised with the horses, but that this ruling did not bar contributory negligence as a defense. The trial court further ruled that substantial evidence existed to support jury instructions on all of defendants’ theories of contributory negligence. The jury found plaintiff to be 80% negligent and defendants only 20% negligent, and fixed defendants’ damages on their crossclaim at $1,250 for the loss of the horses. Judgment was entered on the defendants’ crossclaim.
In a subsequent order granting plaintiff‘s motion for a new trial, the trial court held that no substantial evidence existed to support the contributory negligence instructions based on driving under the influence, racing or failing to maintain brakes. The court reasoned that these instructions likely caused the jury to accumulate speculated negligence on the part of plaintiff so that the jury verdict of 80% negligence was not justified and that a fair and impartial trial was not had. The defendant animal owners have appealed.
I. New Trial
We first address the defendants’ assignment of error that the grant of a new trial was improper. The trial court has broad discretion under I.R.C.P. 59(a) when determining whether to grant or deny a motion for new trial. As stated in Dinneen v. Finch, 100 Idaho 620, 626, 603 P.2d 575, 581 (1979):
This Court is firmly committed to the rule that a trial court possesses a discretion to be wisely exercised in granting or refusing to grant a new trial and that such discretion will not be disturbed on appeal unless it clearly appears to have been exercised unwisely and to have been manifestly abused.
Defendants argue that each of the several contributory negligence instructions were supported by substantial competent evidence, and therefore the trial court‘s contrary conclusion as a basis for a new trial was reversible error. There is no need for this Court to independently review each of the several contributory negligence issues and conclude whether or not substantial competent evidence existed to support an instruction on that particular issue. At best, each presents an extremely close question and we need not take a position on each issue to affirm the grant of a new trial. It is sufficient to say that the trial court‘s conclusion that the cumulative effect of the instructions likely caused the
[T]he trial court may set aside a verdict and grant a new trial whenever it appears to the trial court that the verdict is contrary to the law or evidence or that the verdict fails to render substantial justice. . . . [T]he trial judge was in a position to see and hear the witnesses speak. He could observe their demeanor on the witness stand, and consequently was in a better position to judge their credibility and to weigh their testimony than is this court....
Dinneen v. Finch, 100 Idaho 620, 625, 603 P.2d 575, 580 (1979), quoting Rosenberg v. Toetly, 93 Idaho 135, 138-139, 456 P.2d 779, 782-783 (1969). Therefore, we affirm the trial court‘s grant of a new trial.
II. Animal Owner Liability
Defendants have raised additional issues on appeal in the event that the grant of the new trial is affirmed. The trial court ruled and accordingly instructed the jury that defendants’ conduct was a proximate cause of the accident and was negligence as a matter of law in view of the fact that defendants’ horses were running at large on the highway at night. Therefore, the jury was foreclosed from considering whether defendants properly cared for and enclosed their horses and whether the horses were on the highway as a result of defendants’ negligence or another cause beyond their control.
A nighttime collision between a domestic animal and a vehicle is not uncommon in Idaho. Our research finds six such cases authored by this Court dealing with rights and liabilities between the animal and vehicle owners. The first such case, Shepard v. Smith, 74 Idaho 459, 263 P.2d 985 (1953), analyzed the doctrine of res ipsa loquitur, and then ruled that res ipsa loquitur should be applied at least to the extent of requiring the owner of animals unattended upon a heavily traveled highway ... to satisfactorily explain their presence in order to avoid an otherwise justifiable inference of negligence. Id. at 464-465, 263 P.2d 985. In Shepard, the animal owner presented evidence attempting to show that he was diligently searching for the animals just prior to the accident. The Court apparently considered this evidence as an attempt to explain or rebut the inference of negligence. The Court stated:
From such a state of facts the jury may have concluded the search was cursory and that in discontinuing further effort to find the animals or to keep them off the highway, and retiring for the night, under the circumstances, the owners were negligent. At least the question for the jury was presented.
74 Idaho at 465, 263 P.2d at 988.
The second animal-vehicle collision case, O‘Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958), interpreted Shepard as follows:
We interpret the announcements of the Shepard v. Smith case to be that the presence of livestock unattended upon a heavily traveled highway in the nighttime raises an inference of negligence on the part of the owner. In the absence of any satisfactory explanation by the owner of the presence of the animals thus on the highway at night unattended, a jury would be justified in finding that the presence of such animals on the highway was the result of negligence on the part of the owner.
If a jury should find from the preponderance of the evidence that the animals were upon such highway at night unattended then the jury should further determine whether their presence on the highway has been satisfactorily explained by the owner; and from all the facts and circumstances in evidence, determine whether the owner was negligent, and if so, whether such negligence on his part was the proximate cause of the collision and damage which the motorist sustained.
80 Idaho at 104, 326 P.2d at 380.
Subsequent to these first two cases the legislature enacted statutes granting immunity from liability and negligence to the animal owner in accidents stemming from a domestic animal‘s collision with a vehicle if: (1) the animal is running on open range,
To summarize the law: (1) the owners of domestic animals are not liable or negligent when the animals cause a highway collision in open range or when the animals are lawfully on any highway,
Applying these rules to the present case, we find no evidence to establish that the horses were in open range or lawfully on the highway. Hence, the animal owners were not entitled to immunity pursuant to
III. Exceeding the Statutory Speed Limit
The appellants raise the additional issue of whether or not exceeding the maximum speed limit contained in
Prior to 1977, former
In 1977, the motor vehicle statutes were recodified with the basic rule and maximum speed limits being contained in
Plaintiff argues that
(2) The provision of this title declaring maximum speed limitations shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence on the part of the defendant as the proximate cause of an accident,
was intended by the legislature to abrogate the common law that violation of the maximum speed limit is negligence per se. This argument was accepted by the trial court
This section reads:
The provision of this act declaring prima facie speed limitations shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence on the part of the defendant as the proximate cause of an accident.
Mrs. Turner contends that under this statute, proof of violation of a posted speed is not negligence per se; rather, that a violation can be no more than evidence of negligence. We disagree. Section 64-18-7(B), supra, indicates that in cases concerned with posted speed limits plaintiff must still meet his traditional burden of proof. It says that a case involving posted speed limits is not a special category just because posted speed limits are involved. Even if posted speed limits are involved, plaintiff must still prove negligence as a proximate cause of the accident.
Section 64-18-7(B), supra, however, does not state how negligence is to be proved. Proof of violation of a statute is one method of proving negligence. See Clay v. Texas-Arizona Motor Freight, Inc., 49 N.M. 157, 159 P.2d 317 (1945). Section 64-18-7(B), supra, does not provide that proof of violation of statutes concerning posted speed limits is not proof of negligence.
Once it was proved that Mrs. Turner violated the posted speed limits she was negligent as a matter of law because proof of the violation was proof of negligence on her part. Section 64-18-7(B), supra, does not change that rule.
Dahl v. Turner, 80 N.M. 564, 458 P.2d 816, 823 (App.1969), cert. den. 80 N.M. 608, 458 P.2d 860 (N.M.1969).
We are persuaded that the maximum speed contained in
The order of the trial court granting a new trial is affirmed, and the case is remanded for a new trial with legal instructions consistent with this opinion.
Affirmed in part, reversed in part, and remanded. No costs or attorney fees.
DONALDSON, C.J., and SHEPARD, BISTLINE and HUNTLEY, JJ., concur.
ON REHEARING
A petition for rehearing in this matter was granted and the cause reargued. The Court has reviewed the record and considered the arguments presented by counsel, and continues to adhere to the views expressed and the conclusion reached in the earlier opinion.
DONALDSON, C.J., and SHEPARD, BAKES and HUNTLEY, JJ., concur.
I.
The majority states in the course of its opinion the following:
To summarize the law: (1) the owners of domestic animals are not liable or negligent when the animals cause a highway collision in open range or when the animals are lawfully on any highway, I.C. §§ 25-2118, -2119; (2) if the open range or lawful conditions are not present, then the doctrine of res ipsa loquitur supplies an inference that the animal owner was negligent; (3) the inference can be supplemented by other evidence of the owner‘s negligence; (4) the inference can be rebutted by a satisfactory explanation or showing by the animal owner of proper care, enclosures, and any other evidence tending to negate the inference of the owner‘s negligence; (5) when properly placed at issue by the parties, the issues of lawful presence, inference of negligence, and rebuttal of the inference, are questions for the trier of facts; and (6) in any event, the vehicle owner may be liable for contributory negligence under various theories. Maj.op., p. 909 (emphasis added).
My review of Idaho law on this point brings me to the conclusion that item no. 4 is an incorrect statement of the law.
Once it is found that an animal is upon a roadway that is not in an open range area, it is presumed that it is not lawfully there, and it is inferred that the animal is there as a result of the owner‘s negligence. Cunningham v. Bundy, 100 Idaho 456, 458-59, 600 P.2d 132, 134-35 (1979); Corthell v. Pearson, 88 Idaho 295, 298-300, 399 P.2d 266, 268-71 (1965). The owner is then allowed the opportunity to rebut the presumption that the animal is on the road unlawfully by satisfactorily explaining its presence. Whitt v. Jarnagin, 91 Idaho 181, 187, 418 P.2d 278, 284 (1966). Not until today has Idaho also allowed an owner the opportunity to rebut the inference of negligence. This distinction is critical for the following reasons.
Under the now old rule—allowing an owner to contest the presumption that an animal was on the road unlawfully—only actions independent of any beyond the owner‘s control could avoid liability. For example, evidence that an earthquake or landslide knocked down the owner‘s fence would satisfactorily explain the animal‘s presence on the road. Under the new rule, an owner can rebut inferred negligence by such a self-serving statement as, I inspected the fences regularly and discovered nothing amiss; I simply have no idea how the animals got out. Now, to rebut any inferred negligence, the majority declares that the owner need not produce any evidence of independent conduct beyond the owner‘s control which was responsible for the animals’ presence upon a public highway. This burden shift places livestock owners in a more advantageous position with respect to liability for their at-large livestock than ever before. This does not comport with Idaho law as it has existed, and is not in accordance with legislatively declared policy.
Idaho law has carefully made and followed the distinction to which reference has been made. In O‘Connor v. Black, 80 Idaho 96, 104, 326 P.2d 376, 380 (1958), this Court stated:
Lastly appellant assigns error of the trial court in refusing appellant‘s requested Instruction No. 1, reading:
You are further instructed that the presence of livestock upon a highway at night unattended raises a presumption of negligence on the part of the owner, and that such owner, in order to avoid being found negligent in allowing such livestock upon the highway must excuse himself by showing circumstances under which the livestock got upon the highway and that such circumstances were not due to negligence on the part of the owner.
Appellant asserts that the requested instruction is consistent with the law announced in Shepard v. Smith, supra, (74
Idaho 459, 263 P.2d 985 [1953]). With such assertion we are not in entire accord. We interpret the announcements of the Shepard v. Smith case to be that the presence of livestock unattended upon a heavily traveled highway in the nighttime raises an inference of negligence on the part of the owner. In the absence of any satisfactory explanation by the owner of the presence of the animals thus on the highway at night unattended, a jury would be justified in finding that the presence of such animals on the highway was the result of negligence on the part of the owner. (Emphasis added.)
In Corthell, supra, 88 Idaho at 298-300, 399 P.2d at 268-71 the Court stated:
Appellant‘s land was fenced, and was located in a herd district. The burden rested upon appellant under the provisions of the aforesaid sections of the statute to show that his domestic animal was lawfully on the highway; otherwise, under
I.C. § 25-2119 , the implied duty rested upon appellant to keep his animal off the highway, since the land was in a herd district and not on open range. See Shepard v. Smith, 74 Idaho 459, 263 P.2d 985 (1953), and O‘Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958), wherein was applied the doctrine of res ipsa loquitur as to animals on the highway during the nighttime....
... Under the law heretofore cited, appellant had the burden of proving that the animal was lawfully on the highway, which was within a herd district and not on open range. The animal‘s presence on the highway was ipso facto unlawful which, in the absence of proof to show that its presence thereon was lawful, cannot absolve appellant from liability for damages....
The law itself supplies the presumption that the animal was unlawfully on the highway at the time and place of the collision unless satisfactorily explained by the owner. Whether appellant did or did not satisfactorily explain the animal‘s presence upon the highway as being lawful at the time and place of the collision, in the light of the evidence, was for the trier of the facts; and the trier of the facts resolved that issue in favor of respondent and against appellant. (Emphasis added.)
In Cunningham, supra, 100 Idaho at 458, 600 P.2d at 134, this Court rejected the defendant‘s argument that she was not negligent and pointed to the fact that she had not provided any substantial evidence to rebutt the presumption that her horse was illegally on the road.
In this case, too, the district court held that the defendants had not presented any substantial and competent evidence to rebut the presumption that their horses were unlawfully on the road. The evidence in this case shows that there was no dispute as to the place or manner in which the horses exited the enclosure. Although the defendants presented a good deal of testimony concerning the general reliability of their fences, they admitted that the horses escaped through a gate which had fallen down, falling away from the enclosure, and that the horses exited over the fallen gate.1 The gate was constructed of pine poles,
A witness for the defendants testified that he felt it would be good practice, if such a hinge mechanism were used, that there be a device to anchor the L bolt so that it could not turn once in place. He also testified that he had used such hardware on his own fence.
There was absolutely no evidence that the gate was exposed to any extraordinary force nor was any damage done to the gate in the escape of the horses. All appearances are that it merely fell over, allowing the horses to escape.
This is clearly a circumstance where the gate was under the control and management of the defendants, and the circumstances are such that an accident would not normally occur without some negligence. Gates should not simply fall over. Defendants were unable to present any evidence at trial that satisfactorily explained the presence of their animals on the roadway nor were they able to explain why or what caused the L bolts on the gate post to turn, allowing the gate to fall. They made no attempt to demonstrate that anything extraordinary would have caused the horses to force the gate or that they had made regular inspections of the hinge apparatus to insure that it was in continuing good condition. In reviewing this evidence, the district court stated:
All right. Well, the Court has taken the view on the record that there‘s no substantial evidence of any force, cause, what have you, outside of the confining facility itself and the animals themselves and legal analysis, we like to believe to point to concepts that are applicable to the proposition of the Defendants. The Court talks in terms of duty to keep the animals confined and of negligence and the failure to do so and the Court sometimes talks in terms of an inference from the failure to do so of negligence and of a burden on behalf of the Defendants to either go forward to show circumstances that rebut such an inference or sometimes it‘s been talked of going forward to show that animals were lawfully on the highway.
I am having some difficulties rectifying the things that Supreme Court has said into some specific category that historically I should be able to clearly understand. I agree with the proposition the use of the word lawfully on the highway or their inference resulting from their being unlawfully on the highway as those terms lawfully or unlawfully then relate to the concept they have to be negligent.
A little different vein when I think about someone having to prove that they were lawfully on the highway and what comes to my mind is that they‘re being driven, led, herded. So we have a little different—at least I do, when I get—I don‘t know, the concept of those things that are rightfully leading in terms of lawfully and necessarily or unlawfully and necessary.
I think I do clearly understand that if they have escaped a confinement and in any breach of the duty to keep them confined, we can then say they‘re not lawfully on the highway. I can conceive the nature of the duty as announced by the Court and is derived from duties to be a special duty. I don‘t know whether you call it a heightened duty, but a special duty, a specific duty to keep them confined. And I believe that encompasses the proposition that you are charged with the propensity of your animals to want to escape confinement. We have a specific gate, its characteristics are in the
record and the fact that it was flat on the ground and the tracks of the horses lead therefrom, there‘s no evidence of any other tracks caused other than the sheer activity of the horses themselves. And under those circumstances, I believe that it is a summary of law, the record shows that the breach of duty occurred. If we‘re talking about negligence then negligence is shown or in any event by law there‘s a presumption of negligence that has not been rebutted in the evidence or being substantial evidence of any kind of an agency or anything else outside of the facility and the animals themselves. Tr., Vol. 2, pp. 487-89 (emphasis added).
I fail to discern how the majority is able to conclude that the district court erred in refusing to submit this question to the jury. Upon the evidence of this case it can in no way be stated that the district court erred. Stephens v. Stearns, 106 Idaho 249, 252-53, 678 P.2d 41, 44-45 (1984). I suggest only that the majority may be guilty of not closely reading the record. Furthermore, I am now fully convinced that prior case law more accurately ascertained and applied the legislature‘s intent and principles of common law.
II.
The majority‘s holding that violation of a speed limit is negligence per se is directly in contravention to established Idaho law. The majority concedes that prior to 1977, former
What mystical event, then, occurred in 1977 which required this Court to interpret
The majority erects a straw man and then attacks it when it goes so far as to say that the district court erred in holding that the federally imposed 55 m.p.h. speed limit was merely an energy saving statute. That is not the issue which needs deciding. Rather, the underlying issue here is to consider the reasons why the 1977 legislature enacted
The majority implicitly acknowledges the difficulty of its position by relying heavily upon a New Mexico Court of Appeals case decided 17 long years ago, Dahl v. Turner, 80 N.M. 564, 458 P.2d 816, 823 (N.M.App.1969), cert. denied, 80 N.M. 608, 458 P.2d 860 (1969). This was before the day of the first petroleum shortage crisis. The majority out of necessity falls back on tha case as a route to take more expediently than attempting to discuss or definitively distinguish Stanberry, supra, Trimming, supra, or Talbot, supra, all of which run opposite to today‘s majority opinion.
It is to be noted that the majority does acknowledge that, under its comprehension of what the law should be, there remains the issue of whether plaintiff‘s speeding violation proximately caused the accident. A close look at the evidence at the first trial suggests that it is entirely possible that the district court, upon an independent, complete and careful review of the record, may again hold that the negligence of the plaintiff, as a matter of law, did not proximately cause the accident nor her injuries.
Such a finding would be harmonious with a case relied upon by the majority, Theonnes v. Hazen, 37 Wash.App. 644, 681 P.2d 1284 (1984). The district court there had granted a summary judgment for a defendant who was alleged to have struck a child who had ridden his bicycle out of a driveway and onto the street. An expert had calculated that the defendant was traveling at 42 m.p.h. at the time of collision in a 35 m.p.h. zone. The evidence also suggested that had the defendant been proceeding within the maximum speed limit, she still would not have been able to respond to the situation she encountered in time to have avoided collision with the child. Theonnes, supra, 681 P.2d at 1285. Evidence in the case revealed that even had the driver been proceeding at the maximum posted speed limit, she would have had no more than one-quarter second additional time to appraise the situation and react. The court reasoned:
Reasonable minds cannot differ. The collision would have happened even if the car was traveling at the 35 m.p.h. speed limit. It would be sheer speculation that anything could have been done by the driver in that p1/4%p second to avoid the collision. Since the collision would have occurred even at the legal speed, the evidence of 42 m.p.h. speed could not be proximate cause....
It would be speculation that the driver could have avoided the child during the period of slightly over 1 1/8 seconds from the time she first saw him or during the period of sightly over .38 seconds after the brakes first engaged. The collision would have occurred at the legal speed, even accepting appellant‘s evidence of 59 feet between the first sighting and impact. Appellant‘s evidence would not support a finding that there was any negligent act of the driver which was a proximate cause of the collision. Id. at 1286.
See also Kilde v. Sorwak, 1 Wash.App. 742, 463 P.2d 265 (1970) (4 seconds); Clark v. King, 178 Wash. 421, 34 P.2d 1105 (1934) (4.16 seconds).
The plaintiff in this case had the right-of-way on the highway on the night in question. That right-of-way was interfered with and violated by the illegal presence of the defendants’ horses on the roadway. Nevertheless, defendants would have the jury speculate with the type of maze of details arising from split-second computation of time and distance, which the Washington courts have rejected as a matter of law in circumstances such as here. It seems clear, therefore, that the trial court has full authority to deal with the issue of proximate causation, upon retrial, in any manner allowed under the Idaho Rules of Civil Procedure, and that it need not necessarily present the issue of proximate causation to the jury—although the majority opinion seemingly dictates that it would do so were it only a trial court.
A counterclaim was filed against the plaintiff for the value of defendants’ horses
In order for a violation of statute to be pertinent in a particular case, the statute must be applicable; that is, the statute must be designed to protect the class of person from the type of harm inflicted as a result of the statutory violation. See Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983); Kinney v. Smith, 95 Idaho 328, 508 P.2d 1234 (1973).