*1 (1966). Idaho 414 P.2d The issues appeal
of law raised on are identical Burley opinion
both in the cases. The case adopted opinion as the herein.
Judgment reversed and remanded for proceedings.
further appellant.
Costs to
McFADDEN, J., TAYLOR, C. SPEAR, JJ.,
SMITH and concur.
W. A. REED and Susan husband and wife, Plaintiffs-Respondents,
Joseph Refining GREEN and Sinclair G. Company, corporation, Defend ants-Appellants.
No. 9696.
Supreme Court Idaho.
May 18, 1966.
Rehearing June Denied 1966. *2 Snow, Burley, ap-
Parsons, & Smith pellants.
McFADDEN, Chief Justice. Plaintiffs-respondents instituted ac- tion damages to recover for the death Reed, their minor daughter, Ann Charlotte resulting from a collision au- between the riding tomobile in which she was and a appel- tank-truck and tank-trailer of the lant Refining Company, Sinclair driven at by appellant time of the accident Green. m., p. The accident occurred at about 11:30 8, 1963, March Street, desig- on Main also Highway 30, Burley, nated Idaho. Following court, sitting trial with- *3 jury, out a findings the court entered fact, judgment conclusions of law and awarding respondents $10,993.10 dam- ages, appeal from which judgment this was taken.
The accident occurred near the western Goodman, Rupert, re- Bellwood & for Burley. highway limits point The at spondents. generally runs in an east and direc- west
tion; straight was with unobstructed vi- more; sion to the west for 1000 feet or some distance to the slight east there was a southeasterly turn This direction. highway has two westbound east- and two by bound lanes of traffic marked solid yellow double down lines the center. Green, night Joseph of the accident driving was a Mack tank-truck tank- with appellant trailer Refining Sinclair plant, bulk crossing trailer Company, employer. his Green had loaded lanes, westbound car Green saw another pipe-line tanks with fuel from a ter- rapidly approaching from This the east. Burley minal transportation east of car Durham; was Joseph driven Dale the company plant adjacent bulk to and respondents’ in it daughter riding. was north highway place at the where On evening Durham accident the accident loading occurred. After had Street, “dragging” been Main trailer, proceeded truck and west Green term vernacular, meaning was used in the through Burley, stopped a railroad two racing prior cars stop. from a Just highway. track con- He then the accident driving Durham was west on, tinued made a left turn to the south the highway occupants to take some of the parking across the and entered a plants car to work in west of Bur- Company, adja- area of the Union Seed ley. Durham driving in the outside highway pro- cent to the on the south. He lane, west bound and at an- the same time through area, parking ceeded made Ramsey, other car driven Arthur circle turn to half to cross driving along bound lane the inside west highway Company from the Union Seed car, and beside the Durham with the oc- area property to the Sinclair north of the cupants of the two talking cars back and highway. stopped at the Union forth. Everett Mounce observed these Company high- leading Seed curb cut to the two driving cars along together they way, gear, shifted his truck into first passed the intersection of Occidental Ave- east coming looked for traffic from nue Street, and Main intersection [which approach- He west. observed no cars was about point 690 feet east ing east, coming from the but saw two accident], Mounce, at the time he observed they passed, and the west and waited until stopped the cars was on Occidental Avenue then started to enter across the at its intersection with Main Street. plant. about bulk When Green was car halfway he saw a across Ramsey Both the and Durham vehicles approaching from driven Matlock Cecil continued west about even with each other. east, in the westbound half of the they vehicle, When neared the Matlock way. This car slowed stopped down and stopped in the inside lane some 50 feet *4 fifty the inside lane feet east of the truck trailer, Ramsey truck east the and the and Green continued driving trailer. the vehicle turned to the left to miss the Mat- highway vehicle, truck across the when and lock and the Durham vehicle con- gate truck straight itself was inside the west tinued in the outside lane until see west- trailer, it that he could testified from the when Green just a few feet as far as Occi- traffic from east left, rear bound and struck the turned to Higens of the was in the Detective dental' Avenue. the trailer which dual wheels of Burley police department that from bound traffic. testified the west inside lane of Company cut to the right rear curb hit the the Union Seed Durham car When n dual Avenue was 690 wheels, from center of Occidental the bolts sheared it that he had Higens wheels testified the dual feet. also and drove trailer chassis curb cut of of the the distance from the the rear end measured underneath out.from dis- Company to the most the Union Seed tank-trailer. point east of the oustide tant visible to the (cid:127) appellant that trial court found The traffic, point was lane for westbound across the time he started at Green Shelley Processing at the west end of ninety feet hundred highway had about six Plant, and was 850 feet. Offi- that distance the east. visibility along Burley police department Wright cer crossing found that trial court also Higens’ testimony fully corroborated in his truck in twen- accomplished could be person testimony regard in to the distance seconds, proceeding a driver ty and that highway to the east see could down thirty-five highway driving west on Company curb cut. Seed from Union only seconds per requires 13.44 miles hour point of from the travel the distance the close of in remarks at The trial court visibility point eastern most “I further find that visibil- the case stated: that the The trial court concluded accident. ity traffic in the area for westbound negli- and their appellants negligent were impact at least to Occi- point extends acci- proximate cause of the gence was the perhaps for dental and east Avenue daughter. respondents’ dent death of trial hundred feet.” The another one or two “Simple opinion Appellants assigned as error in a stated: have court written visibility going that that a driver finding the trial court arithmetic establishes east, thirty-five per hour takes only asserting the evi- miles to the west at feet feet, visibility only to travel the distance shows was 850 13.44 seconds dence visibility to finding point that also that the court erred in its easternmost impossible appellants point.” It is established it per thirty-five time it miles trailer a vehicle traveling to cross the second, and per takes to the traverses 51.33 feet westbound not visible hour trailer, court approaching the trial driver of the truck and from that evident opinion the most travelling legal speed limit 690 feet as within the its considered see easterly appellant could crossing point. distance to reach the *5 531 truck, and the for highway to east. Neverthe- defendants cross-claimed the down appel- damages to finding was that their truck. The trial dis- trial court’s court less the complaint only 690 feet to the missed both and cross-com- lant could sec plaint. Supreme Washington The Court east. upheld judgment the trial court’s that reaching court in the conclusion The trial plaintiff’s negligent entering driver was in negligent respondents were of law that highway point at a where he did not Spoel upon Sandberg v. relied cases of visibility have sufficient to assure that him stra, (1955) P.2d 564 46 285 Wash.2d 776, proceed he could highway across the with- 575, P. Jerke, 354 and Kerlik v. 56 Wash.2d interference, out negligence and that such Sandberg 2d In the case (1960). 702 proximate was a cause accident. Supreme stated: Washington Court Jerke, Kerlik v. 575, 56 Wash.2d 354 right had a take “Plaintiff’s driver to (1960), P.2d 702 was an action for dam- and trailer back onto the ages plaintiff’s sustained when the auto- way place private on the parking from traveling mobile on an highway, arterial leaving parking driveway, but in such struck defendants’ automobile while it was place duty: (1) bring his it was to attempting to enter highway a from where, point a stop vehicle full at a to private parking area. The defendant driv- entering highway, before he could er negligent was held as a matter of law approaching see traffic from either di- failing stop to and observe highway rection; (2) to both directions look in point from a where traffic could be seen. conditions; and observe traffic to (3) The court quoted relied and from yield right up- way all vehicles Sandberg Spoelstra, supra. v. highway; adopt on the (4) such are: Two this action statutes involved precautions may as additional have been I.C. 49-730: “The driver of a vehicle § necessary margin to assure' a reasonable highway a to enter or a about cross safety existing under the circumstanc- 'private driveway yield road or shall P.2d es.” 285 at 566. way approaching to all vehicles In plaintiff that case truck driver was highway.” on said leaving driveway private entering a “‘Right (a) way.’ 49-521 : I.C. § —The point highway aat 375 feet from a blind privilege of the immediate use of curve, entering he as was roadway.” another truck came around the curve and dispute there awas collision. The action are facts without that Green by plaintiff brought damages stopped Company to his at Union Seed cut curb 532 discussing In “approaching” and that upon the term entering
before
attempting
comparable
used in
statute similar
before
both directions
looked
49-730,
Supreme
he al- with
highway;
I.C.
Court of
across
§
to drive
Dwyer
approaching
Christensen,
from the west
South Dakota in
cars
lowed two
199,
(1958),
S.D.
pass,
upon the
N.W.2d
stated:
and entered
to him.
cars were visible
time when no
“
Lang,
‘In Peterson v.
239 Minn.
*6
a thousand
he could see over
To the west
609, 612,
58 N.W.2d
the court in inter-
feet,
cars
he could see no
io the
east
preting
meaning
a
of
statue similar
feet. Un-
for more than 690
approaching
Supp.
to SDC
stated:
44.0319
facts,
considering
length
these
even
der
“
trailer,
presumed
legisla-
‘It is to be
that
of the loaded truck
and size
ap-
granting
right
way
in
ture
of
to
to see where
violated
it is difficult
proaching
not
intend the
vehicles did
That section
provisions of I.C.
49-730.
§
includ-
absurd or unreasonable result of
or cross a
requires
about to enter
a driver
ing
wholly
driveway
distant vehicles which are
out-
private road or
highway from a
yield
right
way
privilege of
danger.’
of
zone of
side
[the
only
roadway]
immediate
of the
use
apply
approaching
“When we
the word
approaching
highway. The
on said
vehicles
highway
advancing
to vehicles
on the
Durham ve-
facts fail to disclose that the
given
this must be
a reasonable con-
is
“approaching” as that
term
hicle was
is
highway
struction. A vehicle on the
generally understood.
approaching
meaning
within the
statute when such
so close that
vehicle is
“approach” has been
The verb
if it
at the
continues in the same course
goor
near or nearer to
as ‘to come
defined
speed
likeli-
same
there is a reasonable
time;
to;
place
nearer
to come
or
draw
danger
hood or
of collision
should
go
in character or
or
near or nearer to
public
entering
driver of a vehicle
quality.”
Third New Interna
Webster’s
highway
private
a
road or drive
Dictionary.
“Approach” connotes
tional
yield
way.
Peterson
fail to
near,
“near,
nigh, go
or
or come
draw near
Lang, supra.
apparent
v.
It
here that
is
nearer,
quar
to close
come closer or
come
upon the
backed his car
when defendant
ters,”
“approaching” con
adjective
and the
likeli-
highway there
no reasonable
notes, “nearing, advancing, coming, oncom
plain-
danger
hood or
of collision
ing, forthcoming”. Roget’s International
could not
tiff’s car. Reasonable minds
re-
Theasaurus,
to this.
instruction as
Third
differ as
Ed.
533
usually
by plaintiff
applicable
question
not
quested
is
un-
a
is
fact
jury.”
facts of this case.”-
58
at 612 to
der the
N.W.2d
613.
appellate
California
courts
consid-
have
Lang,
v.
to that
In Peterson
addition
application
statute, compara-
ered
a
portion
opinion quoted by
of the
the South
e.,
49-730,
ble to I.C.
i.
553 Calif.
Sec.
§
above,
court
is
Dakota
it
stated:
In
Code],
Vehicle Code
21804 Vehicle
[§
applied
advancing on
“As
to vehicles
Thomas,
Cal.App.2d 187,
134
Shannon
approaching must
the word
(1943),
pur-
P.2d
it was held that the
A
given a
construction.
be
reasonable
pose
553,
requirement
is
Sec.
approaching
vehicle on the
is
prevent
private
en-
drivers on
roads from
meaning
when
statute
within
tering
when another vehicle
that,
con-
such vehicle is so close
if it
approaching
is
an
so near as
constitute
same
in the
course at the
tinues
same
Hischier,
immediate hazard.
In Pandell v.
or
speed, there is
reasonable likelihood
Cal.App.2d
it
(1959),
road approaching on said that: ‘The driver of a vehicle about way vides to all vehicles any highway is from argument to enter or cross a highway.’ The public private driveway distance an al irrespective of the road or or from that, made * * * right ley yield the of approaching car driven shall between private way approaching to all vehicles on said Mary Horn and defendant emerg- Literally, highway.’ this section would truck was highway on which the right prospective a require entrant from gave defendant ing, it section, yield way private of the road to way. The subdivision any highway regardless such however, susceptible of all vehicles on is not literally they as an un interpreted where were. This would be interpretation. If read, interpretation. rea reads, then For that or reasonable as the subdivision private son, interpreted sec ever drive from a courts have no one could highway prospective one tion to mean a entrant upon public if a road upon private may lawfully enter from a road approaching such were long The no vehicle distance. sub- so as there is irrespective of the give effect an immediate be construed to so near as to constitute division must Horn, Legislature, which 109 Cal. hazard. Wakefield v. to the intent 97; App. 325, Sugiyama, prevent automobile drivers 293 P. v. Jansen 476; entering public Cal.App.2d 717, Mc 29 85 P.2d private roads 92, Morrison, approaching Dougall Cal.App.2d car was 55 highway when a v. 149; Black, 83 Cal. 130 P.2d Malinson v. upon near as to consti- such so 788; App.2d col 188 P.2d See cases hazard, that no tute an immediate and not p. lected 243.” § Cal.Jur.2d public highway enter one should P.2d at 763. long driveway private so from a road ' public highway was in use.” as the way” Where, “right Idaho, P. at 98. use privilege “the of the immediate means rea- roadway”, (a), the I.C. 49-521 § interpretation given by to the the court set out soning the California courts provisions in California code Wakefield any other in- persuasive here. If above by the Horn, supra, has been followed terpretation given meaning were subsequent Appeal Court of of California in 49-730, never appellant would I.C. § *8 Hischier, supra, the cases. In Pandell v. lawfully entitled to cross have been long highway as as vehicles were court stated: 535 he highway, whether could observe his truck yellow across the double line. yellow 'them not. The double only or line was divide traffic, eastbound from westbound and was though the trial court found Even the authorized marking for the center line oncoming range of vision Green’s two-way on a street or with four more feet, un right to 690 his be traffic to for moving lanes traffic. Manual See unimpeached testimony of offi refuted and Uniform Traffic Control Devices not Wright, which was Higens and cers Streets and Highways, Department U. S. indicated Green’s inherently improbable, Commerce, 1961, 2B-3, p. 121 which 850 was some oncoming traffic June view of adopted by High- the Idaho Board of in approaching vehicles no feet.1 With way 19, Directors September order of to commence view, had Green 1961. This yellow double line did not cause did. at the time he crossing the highway” to be a “divided view was unobstructed of his The distance within meaning 49-718, of I.C. negli § he be said it cannot that such proscribes the driving over, or across the he highway. When crossing the gent in dividing space, barrier or section aof these circum highway under entered the way divided roadways by into two leaving complying fully he was stances an intervening space by physical entry or barrier lawfully gaining After once law. clearly or dividing indicated section approaching in so con- -upon highway, vehicles structed impede as to vehicular traffic. commencement period between the interim crossing were under completion Nor stop. appellants or I.C. can charged down duty to slow either Palmer, negligence respondent’s Idaho with Drury 84 towards the v. (a). 49-701 § daughter 125; in 558, Motor Vehicles the fact that 60 Green entered 375 P.2d C.J.S. error into the Union Company parking 347b, p. The trial court was Seed area 811. § preparatory negligent in appellants highway. At finding the time regard. this truck and trailer crossed from the westbound Appellants lane over the eastbound be guilty cannot held negligence driving the action of lot, parking occupants lane and into the “ * * * board, jury 1. ings Randall, 705, either a court or Bank v. 59 Idaho 89 accept true, 741; positive, must uneon P.2d Idaho Co. In Times Pub. v. testimony witness, 720, Board, tradicted of a credible dustrial Accident 63 Idaho testimony inherently improb 573; Watkins, unless 126 P.2d Watkins v. 76 able, 1057; 316, or rendered so facts and cir Idaho Ro- 281 P.2d National hearing Corp. Loomis, cumstances" disclosed at Tile trial. Idaho Gray’s Shop, Pierstorff v. Auto Idaho P.2d 217. ” 171; 74 P.2d First Trust Sav- &
536
Durham car were so far
findings
will not
disturbed,
be
must be
any
was,
negligence,
if
there
scene that
adhered to.”
considered as connected
could not be
recently
principle
More
this same
has been
tragic
Sandberg v.
accident.
See
expressed as:
564,
776,
Spoelstra, 46
285 P.2d
Wash.2d
findings
“Where the
of the trial court
(1955),
565
which held to the effect that
supported by
compe-
are
substantial and
negligence
a
was not
for a truck to make
tent,
though conflicting, evidence, such
on-
left turn off
absent
findings
appeal.”
will not be disturbed on
coming
following
or
traffic.
Edgeller
Johnston,
359,
v.
74 Idaho
262
trial
is re-
judgment
court
1006;
Hendershott,
P.2d
Freedman v.
versed.
213,
738;
77 Idaho
290 P.2d
Molstead v.
appellants.
Costs to
Co.,
Reliance National Life Insurance
458,
883;
83 Idaho
364 P.2d
Nichols v.
McQUADE and SMITH,
JJ., concur.
630;
Knowles,
550,
87 Idaho
394 P.2d
et al v. Blue Flame
Com-
Gas
Jackson
SPEAR,
(dissenting).
Justice
pany,
393,
90
(1966).
Idaho
are sustained it. being That the well-settled found, rule that where there is “After the the criteria court has evidence, substantial conflict findings in the are not or what other different P.M., sustain, place not evidence could or would took at about 11:30 o’clock findings plausible, what are not and as a result of the accident the de- weight quality or of the evidence killed. cedent was witnesses, credibility of but the sole cri- Highway is a four- “7. That U. S. simply sub- terion is whether there is yellow lines, lane divided two conflict, evidence, regardless stantial of traffic for travel with two lanes made, findings with all sustain the direction, ac- each and in the area of the reasonable inferences and intendments *10 yellow con- the lines cident double are proposition in is so favor thereof. This tinuous and unbroken. universal, to repeated adhered so oft and authority in as to need no citation of immediately preceding the “8. That evidence support thereof. It is not what Green, defendant, accident, Joseph the G. support appellant, negative tends to the truck and trailer drove Sinclair is respondents, but it that favorable to of private property the south side on respond- support what evidence tends to Highway in a north- said U. S. ents, inferences and with all reasonable said easterly over and across direction re- intendments to be drawn in favor of being trailer highway, said truck and spondents, controls the determina- which attempting to sixty length, feet in about controversy Court. tion of the in this Refining plant enter the bulk of Sinclair Company the north side of said on is the time “It almost axiomatic by attempted way. crossing That said place of and the factual features to win Green, defendant, Joseph is about G. tribunal, the trial not a law suit is in twenty feet, taking seconds eighty about page appellate (found court.” accomplish com- at a minimum to page 709) 263 P.2d at highway, in a truck plete crossing of said apply principles these Now let us defendant, by type driven said of the case at hand. Joseph night G. Green on testimony listening After to the point of accident. That from the ob- having advantage of witnesses crossing, Union beginning of having serving personally, them cut, the driver of said Seed curb carefully, the trial weighed evidence all the on visibility traffic of westbound had a findings following pertinent (cid:127)court made ninety six hundred said of about (cid:127)of fact: speed limit as established That the feet. point of by proper authorities from the de- accident
“6. That point im- visibility of the ultimate described as herein ceased was involved per thirty-five accident, miles To nor to block with vehicle the pact is hour. westbound, place from the of the accident outside and inside lanes of the west by entering' City Burley said said and west block in- open more or area from the east he would not highway enters a less limit, speed side traffic. lane of westbound a less restrictive [em- phasis supplied] immediately preceding “19. the- That
í{í 5|C Jfc ‡ [*] entry of said Joseph G. traffic, could not see westbound ex- time said accident “10. That at the cept automobile. the Matlock blocking trailer was all of the said ' outside of the road which was for lane and a part inside westbound lane [*] “23. That a driver [*] [*] [*] proceeding [*] west on [*] traffic. Highway thirty-five U. S. driving per íjí s}s requires only miles 13.44 i}; hour seconds
% ifc point from the travel the distance the Durham auto- preceding “17. That defendant, visibility easternmost by mobile an driven west was automobile Joseph Green, point crossing G. au- one Cecil Matlock the Matlock where accident occurred. proceeding tomobile was followed west automobiles, one Dale driven two impossible “24. That is for the Ramsey. Durham and one driven Art crossing truck and trailer to achieve plant Highway “18. That the Sinclair bulk 30 in the of U. S. *11 traffic, Highway length of located on the north U. S. of it takes westbound time opening an travel 30 and had and has for not of the visible to the driver truck and trailer, travelling and on the the approaching on the west east ends of and within property. defendant, Joseph legal limit, crossing That the G. the the speed to reach Green, point. approach- could the diesel have unloaded traffic That westbound 1964, 8, delivering ing visibility fuel he point was March to east at of by entering plant crossing area from the east about time the the same must, highway begins That all of the diesel fuel could unless the truck entrance. by plant stop, stop entering have been unloaded and slow or for the trailer opening from the east than the rather and trailer to avoid collision. necessary opening. west That was That on March at the time the not defendant, Joseph Green, attempted, crossing for the vehicle driven G. was plant opening Durham, travelling west in the enter from the west Dale public lane attempted do at outside four as he time of lane of said necessarily incurred As a and were the truck. collided with incurred, actually plaintiffs plaintiffs’ and were the collision result of $993.10, general old, of and year unmarried and are sum daughter a nineteen $10,000.00 damages of were suffered injured and died. girl was plaintiffs.” defendant, Joseph G. That “25. fact, operation findings the trial court of From these
Green, negligent in the of was in negligence of both driv- combination concluded that the trailer the truck and proximate in the manner ers and Durham were Highway 30 U. S. daughter death the deceased the accident. causes of the of the time at of Dur- respondents, negligence of that the of bulk entry into the “26. That Sinclair (the of the automobile in which ham driver n plant easterly opening could from the riding passenger) girl the deceased was any danger achieved without have been imputed girl could be to the deceased not High- travelling traffic west on U. S. respondents, parents, and nor her way 30. respondents special damages in awarded the Durham was “27. That the said Dale damages in general the sum of $993.10 lane driving his automobile in a lawful $10,000.00. the sum of all mentioned herein. times principles previously cited in Under the “28. That the driver the automo- opinion, only question this court this bile, Durham, negligent in the Dale competent and there is is whether or not operation automobile, of his that the but findings substantial evidence to sustain the Reed, passenger, was not Charlotte Ann court. fact of the trial negligent. opinion To readers of assist the this negligence of “29. That the combined pertinent following understanding defendants, and Dale Durham is ap- trial, there is evidence adduced at the proximate cause the collision and the depicting pended opinion diagram this plaintiffs’ daughter, death of Charlotte the scene physical features of the essential Ann Reed. map topog out in the the accident as set negligence “30. of the driver That Exhibit as Plaintiffs’ introduced evidence automobile, Durham, not Dale A. plaintiffs’ a superseding cause of harm to fairly fully set quite The facts are daughter, Ann Charlotte Reed. opinion, majority but for forth in the particularly special purposes That dam- I wish “31. the amount of dissent *12 Referring to ages emphasize them. alleged are reasonable in amount some of as plant diagonally to enter the Sinclair particu- A) and diagram (Plfs. Exh. thereto, marked on the at entrance the west at the bottom larly cutout or insert the small curb One of diagram a “33-foot cut.” as thereof, that defendant it is well to realize for the determination the vital facts corporation-de- Green, the driver visibility of Green to case is acci- this approached the of the fendant scene entry prior right just to his or to the east right hand side dent from the east or the private highway from the drive- diagram, travelling in a onto was is- way. direction; It is well to remember westerly stopped the rail- at p. It was dark. 11:30 o’clock m. located a little west road track shown to be record in this entire reliable evidence Burley Main most the intersection visibility is- concerning extent of this Highway (also designated Street as State is- This testimony himself. of Green 30) destination and Park Avenue. Green’s ve- concerning Matlock he said what plant, just located was the Sinclair and' the east approached from hicle ad- north of Main Street. Green West stop to down required to slow was testimony have mitted in his that this could vehicle: the Sinclair avoid collision with entering accomplished by the east been plant designated on the entrance to “Q you Did observe cars that even- diagram curb cut” and this a “27-foot ing? by merely turning could been done have “A Not at the time that I started to lane north or westbound from the cross, no. to turn chose of traffic. Instead Green car, you Mr. “Q When did observe a track, railroad shortly left after Green ? eastbound cross the two south the Union Seed highway, enter lanes of the Well, halfway “A I when was about Company property to the south road, car I found across the there a way, make a half circle or U turn on this Matlock’s, his- out Mr. later was property and re-enter the at what lights coming up inside- designated as a “45-foot curb cut” lo- lane, slowing down. and he was just cated Company east of the Union Seed doing “Q you I And see. what were building. This, course, constitutes then time? at that private driveway entering road or going “A I the road across highway. stopped, Here both looked plant. getting into the ways, approaching permitted cars two proceeded going pass, why then you the west east to he was slow- “Q And do know ing attempt ? highway and to cross down to enter the *13 tion, right left, you “A or that Yes. would have looked east? “Q Why slowing down, Mr. was he Looking east, A I Green ? would have been looking my right, if I had looked give “A To get me time to into the to the east. plant. on any vehicles you see “Q And didn’t “Q you Do know where had come the road? from? I did not. “A Well, “A he told me later he came off you how far about you know “Q Do Occidental, yes. Green, see, down Mr. could (By is “Occidental” the witness east? referring Avenue to Occidental you can see Occi- “A the east there To which intersects Main Street the— dental, that’s about Highway just No. 30 the east designated cutaway Park Avenue and is Occidental, looking this “Q right on the far map, hand side here, on the is not Occidental diagram insert on the Exh. Plfs. map, that is marked on A) you reference ? have to which street what, And “Q couple this is or three Yes, it is. “A you blocks from where crossed ? can Now, of Occidental part “Q Yes, “A it is. you position were you see from Seed marked the Union here at “Q And it is around the curve re- x, small x the small with [the you crossed, ? where is it not question was to in ferred just you “A It can you see can is— it — has in what by the witness marked see on the north side Occidental designated referred been ways you check both from where — curb diagram 45-foot as the on your there from the cab private highway cut or you across getting are to start when property lo- Company Union Seed supplied] [emphasis Seed just of the Union east cated ‡ * * * * * diagram, Company building on the Exh. Plfs. A.] east. you to the “Q then looked And see north side. direc- “A You can been which That would have .542 Main, just lane of that— most little
“Q you mark Would ways past Occidental ? west see side the “A You could coming be, yes. would Yes, you “A can. a little
“Q you mark Would “Q it was on March And the same cutaway there? 3 on number 1963? you portion mark Would “A That’s correct.” you could see? Occidental that that the testimony it is evident From this Oh, just yes, see this four-lane road “A night Green, on the driver, defendant about here. *14 prior to the time immediately question and n “Q That’s not Occidental, is it? accident, visibility was of had this “A Isn’t that Occidental? highway parked south side on the a highway only to entering the before you. you read “Q asking I Do Well am Avenue. point east of a little Occidental ? on here Occidental word can you Right here where opinion “A about majority opposed this As to right see here. heavily, entirely, not the testi- if on relies policemen, took measure- mony two who of you that with little “Q mark a Will position daylight ments in the from of please. prior occupied just to defendant’s (cid:127)“A Yes. they point entering could to part you can see ? “Q That’s the daylight northernmost see in the on the Highway 30 the east meas- side of and “A Yes. 850 feet. The this to be distance of ured n “Q you From were at Union where further established same witnesses however Seed? highway to started to curve the east (cid:127)“A Yes. only east of the a distance of 377 feet marked “3” (The a small witness driveway Company private Seed used Union A, cutaway Exh. in the on Plfs. driver, gradually by and it the defendant northernmost side of to curve to the south until there continued highway just east of Occidental visibility at the distance no whatever Avenue.) of These 850 feet. same officers further [*] [*] [*] [*] [*] [*] established that the distance from the pri- n “Q Yes, you driveway see some of vate of the intersec- and could center Highway northern-
traffic in this road tion of 30 and Occidental State
545 similar vehicle highway feet. is the distance across this in the was 690 This Avenue daylight and at times when the defendants court, by and visibility the trial found of preparing were themselves for trial this see testimony own he could Green’s important It matter. note that that; only es- farther east than no a little attempted trial crossing court found the timate of the additional in feet was distance by require Green would 20 at a seconds made. ever minimum. court, computed by the a vehicle As trial specific This is a instance in which the speed
travelling legal rate at judge concerning determination of the trial p.m. h. would travel the distance between weight, credibility, im- and impact point Occidental Avenue and the inferences plications of the evidence at adduced only of this collision in a matter 13.44 supplanted trial should not be by im- impossible That it seconds. for Green pressions or conclusions appellate stopped to enter the from a solely court taken from the written record. parked position and drive his vehicle —a The obvious implication inference here cab, truck diagonally across trailer — is that night on the of this fatal accident highway through gate into the least, probably than, more sec- plant Sinclair obstructing without required onds were by this defendant-driver way lawfully to traffic using the two north Green in in the lanes or dark the ones lawfully used night endeavoring to enter west, a narrow travelling is graphically shown gateway abrupt and make an turn to the fact that the car driven Matlock had plant. at the Sinclair stop slow In event down and some feet before *15 it necessary was stopping Matlock in reaching path by the used Green in cross- at the intersection of ing the Occidental in Avenue highway order to avoid a colli- Highway 30, at entering thereupon, sion with and the Green-Sinclair vehicle. proceeding a feet, distance of about 690 to uncontradicted, that the The evidence is slow stop down and colliding avoid with by across distance be travelled Green the defendant’s vehicle. cab, feet; highway the was opin- length out, my pointed trailer 60 feet in and in and measured As hereinbefore by period competent testimony required sub- his own a ion there is abundant and highway. supplied by of 20 seconds for him to clear the defendant stantial evidence the finding of Note too that this 20-second interval was Green himself to sustain the by by driving visibility east did established tests run in trial court that his to the Green feet; case, in Under the circumstances it was much the distance of 690 not exceed impossible complied assume for Green to argument let us have with for the sake of hut provisions completely statute, over- of this his non- has been and that this evidence testimony compliance neg- who constitutes negligence. of the His by the officers come visibility ligence when, more is even as their measurements evident took pointed court, daytime. then out have established the trial in the We he had visibility entering plant rate alternative of feet. At the lawful the Sinclair of 850 ap- p. at the entrance speed gateway h. an of of 35 m. automobile on east travelling end proaching property, making will of the Sinclair from the east be such portiori proper per and on the from the at 51.33 feet second entrance northern lane of traffic, designated obviating necessity lawful for highway as thus of at- travel, of tempting such would cover the distance drive diagonally clear across private 850 feet in less than 17 The de- four lanes seconds. from the driveway sec- fendant’s vehicle would still three of the Union Company be Seed highway, necessarily short cleared having blocking onds or obstructing the two test, under de- north properly even the 20-second made lanes of traffic to be used daylight travelling public fendant preparation from going east for evidence to be adduced trial. to the west at at the the scene this acci- dent. It therefore becomes that obvious could not enter and cross the Spoelstra, 46 Sandberg The case attempted here, using type of vehicle (1955), 285 P.2d at Wash.2d night driving he was acci- on of this particularly applicable There here.
dent, subjecting pub- travelling without court said: approaching lic from the haz- east to the have miles an hour it would “At five down, turning of slowing stopping, ard or clear ten seconds to taken almost to the lawful left from the lanes of gone if traffic lane he had westbound colliding to avoid defend- road; obviously, he directly across ant’s certainly vehicle. This is violation longer take travel had to farther provisions of I.C. 49-730: § a forward proceeding he because to enter vehicle about “The driver of a lane. angle across westbound traffic private road cross a or It that either gambled is clear way yield driveway shall approaching con- for a no vehicle approaching said all vehicles beyond curve 375 way.” siderable distance
545 that, away coming, ing or if one was obstructing feet all of the north lane collision part it could and would avoid of the inside north lane yielding stopping, slowing abruptly, traffic, the accident would never have portion him whatever westbound occurred.
traffic lane he needed.” The fact the- driver of the other car (Durham) negligent, was also and that precisely This what defendant Green did negligence proximate was an additional lost. gambled in this case. He and he cause of the accident and the death of part action on the of defendant Green Such girl, deceased is immaterial. That there positive easily in violation of a statute could can proximate be two or more causes of negligence be deemed as a matter of law. injury an or death is established in Idaho. In event the conduct of defendant Pigg Brockman, v. 85 P.2d Idaho presented be Green was such it facts to 286. Under negli- the circumstances here facts, submitted to the finder be it gence imputable of the driver Durham is not jury court, question negli or the passenger occupant, girl. the deceased gence; trial court was correct in error, As assignments ap- one of the finding negligence being sustained —this pellants judgment contend that the awarded competent and substantial evidence. Sand respondent was excessive. is bolstered This berg Spoelstra, supra; v. Provin Con by merely paragraph brief, one in their Co., Cal.App.2d 417, tinental Oil 121 P.2d no citations or authorities (1942). it, ignored entirely base and this was argument their oral the court. This before
It seriously cannot be contended that seriously urged by appellants was not such negligence proxi- was not one should not be so considered this court. mate causes of the accident and the death girl, deceased because “but for” the judgment of the trial court should fact that the truck and trailer was block- be affirmed.
547 *18 (dissenting):
TAYLOR, Justice dissenting opinion in the
I concur Jus- agree However, I do not Spear.
tice trial accepted view, apparently driving across
court, that act Green’s turn on south, to make
highway to Company, could
property of the Union Seed contributing to negligence
be considered
Horton,
Hunter v.
involved.
collision
(1958).
Willis
Ralph & Im- and White Hardware S. WHITE Co., Defendants-Respondents. plement
No. 9615.
Supreme Court Idaho.
May 25, 1966.