*1
Jerry ROBINSON, Jr., minor, by
through friend, Jerry his next Robinson Robinson, wife, Doris husband and
Plaintiffs-Appellants,
Gary Mary Lee WESTOVER and Lou
Westover, Defendants-Respondents.
No. 13211.
Supreme Court of Idaho.
Nov. 1980.
Rehearing Denied Dec. 1980. Parsons,
R. C. Stone, Stone & Smith Burley, for plaintiffs-appellants. Robertson, Bert Parry, Larson of Daly & Larson, Falls, Church, Twin T. H. Church of Church, Tuft, Burley, Snow & for defend- ants-respondents.
McFADDEN, Justice. appeal by
This is an plaintiff-appellant acting by through his parents, from granting of defend- ants-respondents’ Gary Lee Westover and Mary Lou Westover’s motion summary judgment.
On June approximately 5:30 p. m.1 an accident occurred on Idaho State Highway approximately five miles north of Oakley, Plaintiff-appellant Idaho. child, (Jerry), Jr. a seven was on a motorcycle when he was struck a Ford Pinto wagon station owned by the However, dispute Mary There seems to be deposi- as to the m. Lou Westover’s Gary exact deposition report time of the accident. In Westover’s tion counsel stated that “the shows it ” approximated happened the time is at 2:30 around 5:30 . .. . *2 Gary West- “I saw him about the time that-where operated by and respondents directly in front of the car the weather he was almost undisputed It over. turning from my eyes because back visibility good and that was fair and the left from where Rick was and the there was no obvious obstruction to vision. coming Robinson house was and he was highway good The two lane was in condi- side, this and then I hit him.” on from undisputed tion. It is also that at the mo- operating the impact ment of Westover was reveal that neither the sta- depositions per hour approximately vehicle at 55 miles motorcycle, any had wagon tion nor posted speed. in a zone for that mechanical defects. Immediately prior Jerry to the accident of Following taking depositions of riding motorcycle Sr., had been his while accom- Robinson, uncle, Robinson, panied by Robinson, Westover, his Rick a four- Gary Mary Doris Lee high teen school freshman who was Lou and Rick the re- riding motorcycle. his own Rick crossed spondents summary judgment. moved for Highway 27 from the private motion, road on which granted the stat- The district court he riding private driveway had been to a ing part belonging parents his on the other side of indicate “The material facts highway. Rick After crossed the vi- there was no obstruction to the side, to the east he his own the minor that he sion of motorcycle Jerry stopping and observed his able to vehicular travel over observe own Kawasaki motorcycle on the west side highway question, that he had not the highway
of
with his
wheel
front
located
at the invitation of
highway
crossed the
upon the asphalt but behind the white fog
uncle,
his
who was on
direct-
line located at
highway
the west side of the
plain-
ly across the road from the minor
surface, waiting for
pass.
observed,
traffic to
Rick
tiff,
or should
signalled
cross the
Westover vehi-
approaching
observed the
Jerry stayed
but
Following
where he was.
safety
of
place
cle and remained in his
refusal,
this
Rick turned his attention to the
cross the
safely
until he could
approaching traffic
summary judg-
and saw the vehicle
Defendants motion for
driven
Gary Westover.
granted upon
ground
He was observ-
ment will be
ing this
impact
vehicle at the time
the minor
and
that the
of
did not continue
than the
great
greater
to observe the location of
was as
or
Jerry.
com-
Rick
Plaintiff’s
Gary
gence
and
Westover were well
of the defendant.
acquainted,
prejudice.”
plaint
will be dismissed
Westover had been Rick’s
throughout
teacher
junior high school.
whether
appeal
issue on
The essential
Westover was also looking
up
toward Rick
respon-
granting
erred in
the trial court
until the time of the accident. Rick was
We
summary judgment.
dent’s motion for
stationed on the left
side of the
respect
in this
hold that the court erred
and apparently waving at the Westover ve-
reverse the court’s order.
hicle. There were no skid marks nor evi-
granted
judgment can be
Summary
dence
evasive action
the West-
genuine
no
issue of
only when there is
over vehicle. Jerry
inju-
grievous
suffered
moving party is enti
and the
material
ries as a result of the
accident
is cur-
of law.
judgment as a matter
tled to a
rently
paraplegic.
summa
56(b)(c). Upon motion for
I.R.C.P.
There is
Gary
whether
resolved
judgment all doubts are to be
ry
Westover saw Jerry
impact.
before the
56(c);
party.
I.R.C.P.
against
moving
deposition
Westover stated:
72,
Banner,
69,
455 P.2d
Crane
estimate,
“It would be hard to
but at a
(1969);
Rivers
Salmon
very
distance,
close
motorcycle pulled
Inc. v. Cessna Aircraft
Sportman Camps,
out in front my
car.
306, 307,
Co.,
544 P.2d
rare situation
quite
Except
only
operator
reasonable minds could not reach
“It
in which
look,
issue,
his duty
but
it is
conclusions
issues
different
cognizant
which is
con-
visible
cause like
obviously apparent,
or
and the failure on
tributory negligence
are issues for the
part
regard,
in this
Banner,
without
Crane v.
93 Idaho at
to resolve.
reason,
justification
charge-
makes him
Yost,
(1969); Hayward
at 319
*3
able for
to see
failure
what
should
971,
(1952).
242 P.2d
975
Idaho
seen
been in the exercise
had he
of
The
cases were decided
above cited
(Citations omitted)
reasonable care.”
84
negli
the
contributory
under
doctrine of
564,
at
P.2d at
Idaho
375
128.
1971,
gence.
comparative
Idaho enacted
429,
In Potter v.
100 Idaho
599
(1971
negligence statutes.
I.C.
§
(1979),
quoting
1000
this court
P.2d
from
1,
863).
difficulty
ch. 186
L.
Sess.
Hickox,
18,
Coughran v.
82 Idaho
348 P.2d
judgment
action
applying summary
in
in an
(1960),
724
if a
held that
motor vehicle-an
resulting
the
premised
negligence
from
prior
stopped
entry
automobile-is
to
onto a
duties,
necessity
balancing rights,
of
through highway
and is seen
the driver
are further
when com
conduct
exacerbated
lawfully approaching,
of a vehicle
ap-
the
negligence concepts are considered.
parative
proaching driver is entitled to assume that
just
not
the
the
whether
Now
stopped
will yield
right
the
the
of
negli
of
guilty
contributory
was
appellant
431,
way.
companion did not see the actual accident. that, We conclude on the facts which The only opposi- other evidence offered in court, were before the district reasonable tion to the summary judgment motion for might very father, minds well differ as to that of Jr.’s whether mother, uncle-companion. and his lookout, Westover Each keep failed to they nothing stated that knew and had and if so differ also as to degree of his nothing been told which would indicate that negligence, any. if It was established that any way defendant-driver was in next gent operation in his of the Westover vehi- period surface for a of time Hence, cle. my view of the record indicates accident, and that there were regardless no obstructions to Westover’s vision as he *4 quantum, Robinson or its there has been no approached point where showing any negligence part on the stopped. Notwithstanding this West- defendant-driver, nor have facts over stated that he did not observe Jerry been asserted from which an inference of immediately impact. before the his legitimately could be drawn. conclusion, In the facts of this case do not I impossible find it to reconcile the in- present that rare situation where reasona- stant case with this Court’s recent decision ble minds could not differ on an interpreta- in Potter v. Mulberry, 100 Idaho by respec- tion of the facts as claimed P.2d 1000 Mulberry, In the Potter parties. The tive court therefore reverses vehicle through highway ap- was on a summary the order for judgment and re- proaching an intersection. The driver of mands the case for further proceedings. only Potter vehicle testified that she appellant. Costs Mulberry had seen the the intersection awaiting vehicles to clear so that she might through enter the BISTLINE, JJ., BAKES concur. way. Mulberry testified that she did not SHEPARD, Justice, dissenting. see the vehicle approaching on the through disagree I must majori- with the determining if instant case ty’s characterization of what the Court presents one of those rare situations in e., Mulberry, “concluded” in i. “that which reasonable minds could not reach dif- uncontradicted evidence disclosed that conclusions, ferent I believe the following approaching driver had maintained a proper additional details must be added to the ma- lookout.” Nowhere Ido find such language jority’s somewhat terse summary of the or such a Mulberry. conclusion in only facts. When Jr. was six statement Mulberry Court is: old, years parents his gave motorcy- him a “There is no evidence that Mrs. Potter cle. After his father had instructed him as traffic regulations as operations, permitted to its he was to ride it proceeded she down Jamestown Road. fields, through gravel pits, private roads fact, her testimony uncontradicted public and on highways roads and to visit driving she was per to 10 miles grandparents his friends. At time hour posted below the speed limit. There here, of the accident he was were no unusual weather or road condi- riding larger motorcycle which had been tions that would have necessitated driv- * * * given parents approximately to him ing at a speed. slower Like- three weeks to the accident. At the wise, there is no evidence in this record question, accompanied time he was which will jury finding sustain a of ac- uncle, twelve-thirteen who had part tions on the of Mrs. Potter which riding motorcy- and had possessed also been could be considered as a cause years he was six old. cles since of the collision.” I, Donaldson, J., support of Although along with C. therefrom must be construed in required I am dissented verdict.
accept present as the law of Idaho. aforesaid, I would either follow the As placed When the beside Mul- instant case the sum- Mulberry dictates of and affirm my it cannot berry, opinion both or, mary judgment in favor of defendants wrong, and I stand. One two alternative, Mulberry in the overrule be overruled. prefer judgment. summary reverse the case, In the are plaintiffs instant entitled preferential of the most view benefit DONALDSON, J., concurs. C. arising there- facts inferences absolutely from. There are no “facts” ON DENIAL OF REHEARING any negligence part which indicate on the BISTLINE, Justice. the defendant-driver in the instant case. Although the driver the vehicle rehearing petition Defendants in their through highway, just as in assign opinion as error in the Court’s statute, rely upon entitled to I.C. § consider, failure “to because defendant codified as I.C. which re- [now 49-644] owes no defendant’s con- quired yield right-of- duct as a matter of law cannot be the persons approaching to all proximate cause of the accident.” In through may nevertheless there supporting argue: brief defendants slight arising be some inference from the “Whether defendant Westover did or did *5 facts that the driver the oncoming vehi- acci- not see Robinson lookout, keep a proper cle failed to since he dent has bearing no on the might have been able to swerve and to proximate cause in the instant matter. avoid or at least slow down the to avoid Westover De- owes no to Robinson.” resulting more serious consequences if he herein, fendants in their first brief filed keeping proper was when lookout the pointing after out that “it is and young boy on the darted into his admitted defendants that their path. any did not leave skid marks on the surface (cid:127) road,” “that majority, urged upon If such be the rationale of the of the then us compara- absolutely then such is at clear odds with the there is no evidence in the record any negligence part Gary wherein the the Lee ble situation in Court below, however, did stated its ironclad rule of law that the Westover.” The court contention, agree not rather through highway on the was entitled with that but driver entering attempted compare negligence that vehicle would to of the to assume defendant, boy against that of the West- obey the statute and hence the driver I, too, agree not over. am to with that through highway vehicle on the could unable been, law, contention, where the con- proxi- as a matter of and defendants tinue to insist that Westover as a matter of mate cause of the accident. chargeable law is with no causative the factual the benefit of gence, briefly my I will state own views on presumptions arising view and the there- this record. from were identical to the case bar. tried, jury The record is clear that did not the cause had been precipitately how- follow Rick across the had returned a verdict for way, in an attributing Jerry perhaps but rather that ever 40% of judg- crossing exercise of caution refrained from plaintiff. Plaintiff moved for v., contending plaintiff passage was until and after of traffic other than ment n. o. boy which the Westover vehicle. The and his mo- guilty negligence, of no causative highway, reversed. were at this time on the motion was denied. This Court torbike fog beyond all facts but behind the white line. It is upon appeal It is axiomatic that arising dispute boy that and his bike were and the favorable inferences most
771
Westover,
clearly
legislature
recognized
visible to
and the West-
The
has
that
clearly
over vehicle was
boy.
visible to the
special
entitled
children are
considera
boy
is unable to recall what happened.
“.
every
tions of care:
. .
driver
a vehicle
seeing
Westover does. He admits to not
due care
avoid colliding
shall exercise
boy
and the
boy
bike
he saw the
any
pedestrian upon
roadway
with any
path
move “into the
when
automobile
sounding
give warning by
shall
the horn
he was so
any
close thereto as to avoid
necessary
when
and shall exercise
brief.)
(From
collision with him.”
Westover
precaution upon
child or con
Westover
he
testified that
“had never seen
incapacitated person upon
fused or
a road
him
at the side of the
I
road....
49-735,
way.” I.C.
amended thereafter
§
as
him,
saw him an instance
I
before hit
as he
July
I.C.
49-724 to be effective
§
pulling
out to
road.”
A presented
could find under the facts
Yet, the fact of the
boy
matter is that the
aged
so far
years,
that
7
bike
to be
there
seen. Also to was
a confused
well as the
child
seen,
Westover,
actually
seen
49-701,
which
obviously
he
I.C.
was.
§
opposite
side
49-681,
which became I.C.
specifically re
boy
on his bike.
quires
speed
special
reduced
“when
hazards
respect
exist
pedestrians
or other
recently
Shepard,
Just
Justice
in Gavica
A jury
traffic.”
of reasonable men and
Hanson,
P.2d
women
find
could
Robinson was
(1980), reaffirmed Munson v.
Depart
State
special
hazard then
existing
and there
of Highways,
ment
P.2d
seeing
of which
holding
in its
“that
the driver
part of
had
of an automobile is held to
Westover
have notice of
that which is
visible on
seen that which was there to be seen
Munson,
him.”
Of
in distinguishing
appropriately
speed,
would have
reduced his
horn,
that case from the facts and circumstances
as well
and prepared
as sounded his
Gavica,
attendant
opinion
any required
Court’s
himself for
evasive action.
stated
“Munson involved a
dan
clear
long
The law has
recognized
children
highly
ger,
visible on the road
before it
pru-
are hazards on or near
A
*6
encountered.”
are
it
legion
Cases
motorist,
dent
one deer on or
negligence per se for a driver to fail
horse,
near a
or a cow or
for that
seen,
that which
Drury
there to be
matter, ought
anticipate
pres-
also to
Palmer,
opinion being
cited in the Court’s
animals,
ence
and act
of other
accord-
point.
Gayhart
clear
ingly. Surely
within the bounds
reasona-
Schwabe,
avoided and that Kenneth
injured by reason of Mrs. Schwabe’s failure so, you you then do are instructed that be entitled to return a verdict for
plaintiffs, Gayharts, unless .” . . .