17 P.2d 547 | Idaho | 1932
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *628 About 8 o'clock P. M., October 6, 1930, appellant driving his automobile in an easterly direction on the state highway about six miles east of King Hill with Joseph H. McCoy, now deceased, the husband and father respectively of respondents, his guest, approached a slight curve in the highway, and suddenly saw a Chevrolet *630 truck headed westward, bearing down upon him, and collided with the truck, driven by one Lawrence, Mr. McCoy being killed as a result of such collision. It is undisputed that appellant's car at the time of the collision was on the north or wrong side of the road, which appellant endeavored to explain by stating that he was blinded by the lights of the truck. Lawrence's truck was traveling about 20 to 25, and appellant's car at approximately 30 to 35 miles per hour. The evening was rainy and foggy, with obscured vision.
From a verdict and judgment for plaintiffs for the alleged wrongful death of Mr. McCoy, defendant appeals.
Appellant first contends that the verdict and judgment are unsupported by the evidence in that (a) respondents failed to prove the negligence alleged, or any negligence; (b) that respondents' evidence shows appellant had a legal excuse for his part in the accident; (c) that negligence cannot be inferred from the fact of the collision alone; and (d) that the evidence shows deceased was guilty of contributory negligence.
Whether respondents made sufficient proof of negligence, whether defendant was blinded by the lights of the truck, and whether respondents' decedent was guilty of contributory negligence were questions for the jury which they determined adversely to appellant and the evidence is sufficient to sustain such findings.
Appellant complains that instructions 5,1 92 and *631 133 improperly instructed the jury that to drive on the left-hand side of the road was per se and not prima facie negligence.
From a reading of the instructions, it is apparent that No. 5 applied generally to negligence and the care required in the driving of automobiles.
Appellant does not complain of instructions 74 and 8,5 and these two instructions stated the law with regard to being on the right or left hand side of the road.
Instructions 9, 10, 11 and 12 apply to speed only, and *632
instructed the jury that a speed in excess of the statute was merely prima facie evidence of negligence. No. 13 required ordinary care as to the operation and control and position on the road of the automobile, thus harmonizing with Hamilton v.Carpenter,
The distinction contended for by appellant and which, for the purpose of testing these instructions complained of, we consider, is that negligence per se is not excusable, whileprima facie negligence may be. (Chiswell v. Nichols,
If instruction No. 7 stood alone, and the jury could have considered No. 9 applicable to it, there might be merit to appellant's contention, but No. 8 in effect followsHamilton v. Carpenter, supra, advising the jury that driving on the left-hand side of the road in and of itself, does not constitute negligence per se, but only where so driving the driver "failed to exercise ordinary care" would it be negligence.
Whether or not he was guilty of negligence in taking the course he pursued is dependent upon whether he acted in a reasonably prudent manner. In the case at bar, instead of saying "reasonably prudent manner," the court instructed that if he "failed to exercise ordinary care" he would be guilty of negligence.
In addition to defining ordinary care in No. 5, the court further amplified the same in No. 12, to which no exception has been taken, and while the court did not say that driving the car on the left side of the road was only prima facie
negligence, he admonished the jury that only in the event appellant was on the wrong side of the road by reason of failure to "exercise ordinary care" would he be liable. (Mooneyv. Canier,
While the instruction might have been more clearly and explicitly worded, in the absence of a proper request, and none was made, no prejudicial error appears. (Joyce Bros. *633 v. Stanfield,
The correct portions of appellant's requested instruction No. 106 urged in assignment No. 4 were sufficiently *634 covered by instructions Nos. 127 13 and 168 given.
Assignment No. 5: Requested instruction No. 179 was not in line with the instruction given in Dillon v. Brooks,
Instruction No. 2610 given by the court with regard to contributory negligence of a guest was correct as far as it went, and in the absence of a correct requested instruction, appellant will not be heard to complain. (Boomer v. Isley,supra.) Instruction No. 26 is further considered infra.
The giving of instruction No. 26 and refusal of requested instruction No. 911 are urged as error. The first *636
portion of the instruction requested states that one who accepts a ride takes "the risk attendant upon the driver's skill and customary habits of driving known to him." An examination of the record discloses no evidence that McCoy knew anything about Krengel's driving prior to the trip during which the accident occurred, and that part of the requested instruction having no basis in the evidence was properly refused. (Powers v. Security Sav. Trust Co.,
Assignment No. 7: Sess. Laws 1931, chap. 135, sec. 1, p. 232, provides that liability of an operator to a guest arises only from gross, and not from ordinary, negligence. The only question is whether such statute is retroactive so as to apply to the instant case. Ordinarily statutes are not retroactive unless expressly so stating. (Lawrence v. Defenbach,
Instruction No. 2512 is urged as erroneous on the theory that it told the jury it was a joint enterprise, and omitted all reference to contributory negligence. The instruction did not tell the jury it was a joint enterprise; it merely defined it and advised them that in case they found it to be such, from the evidence, defendant owed deceased the duty of ordinary care in the operation of the car, which was proper. (42 C. J., p. 1057, sec. 804, note 55.) The issue of contributory negligence was sufficiently covered by instructions Nos. 2, 8 and 26.
Assignment No. 9: We believe that the evidence is sufficient to sustain the award of $9,000 damages, and that such an amount is not grossly excessive. (Hayhurst v. Boyd,
This court said in Butler v. Townend,
"In cases of this character it is not possible to prove the damage with any approximation of certainty. The *638 jury must estimate them as best they can by reasonable probabilities, based upon their sound judgment as to what would be just and proper under all of the circumstances."
Appellant urges in assignment No. 10 that the court erred in admitting testimony as to the amount of business done by deceased with the Horton Mercantile Co. In view of the restrictions contained in instruction No. 20 this was not prejudicial. The testimony urged as prejudicial in regard to deceased's income was stricken from the record and appellant cannot complain.
Instruction No. 2213 complained of, when considered with instructions Nos. 20 and 21, is not prejudicial. The latter part of the instruction telling the jury that they might consider both the loss of a legal obligation and of a moral one was proper. (2 Sedgwick on Damages, sec. 574, p. 1108; Sneed v.Marysville Gas Elec. Co.,
The matters referred to in requested instruction No. 15 were sufficiently covered by instructions Nos. 20 and 22.
The errors urged in assignment No. 13 are disposed of by the consideration of the other assignments *639 except the contention that the trial court erred in refusing defendant's motion for a new trial. No abuse of discretion appearing, his action in this regard will not be reversed.
The judgment is ordered affirmed. Costs to respondent.
Lee, C.J., and Budge and Varian, JJ., concur.
"This is subject to the qualification that where the statute states that a violation of a particular law of the road is onlyprima facie unlawful, a violation of such law would be onlyprima facie negligence."
" 'Drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other at least one-half of the main traveled portion of the roadway as nearly as possible.' "
"You are further instructed that if a collision happens so soon after a driver is temporarily blinded by the lights of an approaching vehicle that such driver has not the time to take the precautions that the ordinarily careful and prudent person would take had he the opportunity, then such a driver cannot be charged with negligence or with liability for the collision, provided that the character of his driving just before the blinding was not so negligent as to itself create the condition causing the lack of time.
"Therefore, in this case, if you believe from the evidence that prior to the collision, the defendant was temporarily blinded by the headlights of an approaching truck, and that the collision occurred so soon thereafter that he did not have the time to take the precautions that an ordinarily careful and prudent driver would have used had he the chance, your verdict must be for the defendant unless the plaintiffs prove to you by a preponderance of the evidence that immediately prior to the blinding the defendant was not using the care and skill of the ordinarily prudent driver, and that his failure to use such care and skill itself created or caused the condition under which defendant did not have time, after the blinding, to take the required precautions."
"Negligence may also consist in the violation of a statute, such as the law of the road, governing one's conduct at certain times or places, unless such statute makes the violation merelyprima facie negligence, in which latter case the violation of the statute has only the consequence attached to it by the statute."
"And you are further instructed that in determining whether a man is negligent in any given set of circumstances, there should be taken into consideration all of the surrounding facts, the time within which the person in question could act, the fact whether he had reason to believe that he was in imminent peril himself, and any and all circumstances which would or could affect the mind, reason or judgment of any ordinary reasonable man; that is to say, the test is not what a person would do under ideal circumstances when he had plenty of time to plan and think, but the test is what an ordinary, reasonable, and prudent man would or could do under those specific circumstances and under the specific time given to act."
"And you are further instructed that in this case, the plaintiff cannot recover damages unless the deceased, Joseph McCoy, could have done so if still living."
"So in this case if Joseph McCoy was sufficiently informed by previous riding with the defendant of the latter's skill and habits of driving, he took upon himself the risk of such skill and habits of the defendant. If the defendant was suddenly blinded by the headlights of an approaching vehicle and thereupon acted according to his best skill and judgment, he would not be liable to Joseph McCoy himself had that party survived the accident, and therefore would not be liable to his heirs for his death, it being the rule that if the driver is not liable to the passenger for injuries, he is not liable to the passenger's heirs if the injuries result in death. Therefore, if you find the facts to be as I have assumed, your verdict should be for the defendant."
