*1 145 peal in change in the criminal tious.” In a time of an abuse absence of that discre- law, presents rare case which tion. will be the grounds appeal, and be rational we McFADDEN, J.,C. DONALDSON and in this denial of the certificate lieve the SPEAR, JJ, BELLWOOD, District case was error.7 Judge, concur. Turning next
bail, the district determination court’s
whether defendant shall or not convicted appeal is a pending admitted to bail
be separate the decision
determination
grant
deny
probable
a certificate of
appeal.
grant
or denial
sibility that the defendant will
escape.10 case,
In the the court stated Iverson
there “some sufficient reason” must be case,
refusing one suf bail. In the France refusing stated ficient reason for bail was “* * * record be [defendant’s] reasonably anticipated may that it be such until of crime
that he continue career will prison.”11 actually incarcerated in
he is discretionary with
It refusing bail granting disturbed on
defendant and
will
Relating
Waterman,
259, 272,
Minimum Standards
210
7.
A.B.A.
36 Idaho
Of.
Appeals
(Tentative
208,
(1922) ;
Schriber,
1.1
P.
to Criminal
In re
1969).
531,
29,
L.R.A.,N.S.,
P.
Draft
Neil,
(1911)
6, supra.
n.
120,
6, supra,
Iverson,
Idaho at
8.
n.
7G
supra,
205; Neil,
6,
Days
Ryan,
Bail,
n.
P.2d
10.
See
The Last
754, 882,
J.Crim.L.Criminology
Furchner & appellant.
Clemons, Green, Boise, Skiles & pellees.
McQUADE, Justice. opinion together actions
This treats two disposition, which were consolidated for they since ac- both arose out of the same During July cident. the late afternoon of 23, 1965, plaintiff-respondent David Vin- wife, accompanied by cen his (Vincen) was driving truck employer’s his 1955 GMC northerly Highway high- a two-lane Idaho, way, County, and near Lemhi The truck mining the old town of Gilmore. was a and loaded with an flatbed was 5,000 Ingersoll-Rand weighing drill rock 6,000 daylight, to It lbs. the weather clear, dry, and highway level direc- straight in each several miles sight tion there and were no obstructions. Both Mr. and Mrs. Vincen testified speed truck to miles of the was 50 per hour. place defendant-ap-
At the same time and pellant driving Jeep sta- Lazarus was northerly wagon in direction Highway plaintiffs’ and was ahead teardrop pulling truck. He was a small equipped trailer red brake which was with left-right signals all of which and turn good operating were and electrical had missed a turn off condition. Lazarus Highway slowed down for had speed per several to a to 20 miles miles looking place on either hour and was for a re- side around turn approach- verse his direction. Lazarus occurred, place ed the where the accident actually intersecting but before he saw the road, plaintiffs’ he truck some observed hand distance behind him the northbound lane of travel. Because trailer, only defendant was able utilize in- side rear mirror and not the view trailer, About ten seconds time a red flash on rear view mirror. side testimony, Jeep later, according Lazarus’ its left turn. commenced horn, turn, did not attempt left sound his on his Lazarus apply to five seconds his brakes until after additional three the moment of *3 Hilltop impact the began his left turn into two-rut was in the left lane of Road. travel. left front Jeep Mine The of Lazarus’ hit the right rear wheels of double Vincen’s they that Vincens observed testified Jeep truck. The and trailer came-to rest Jeep them in their and trailer ahead of still on the and the truck rolled slowly very traveling lane of traffic own they rapidly it. several times and overtaking and that came to rest between high- Vincen states that he observed 300 and feet point impact from the way directions, turned left in both on his facing southerly and direction on the city de- block behind about westerly highway. side of fendant, lane, pulled left and into the dur- The characteristics the roads involved ing city proceeded to block overtake where the accident are best occurred as- plaintiffs’ defendant’s truck vehicle. plaintiffs’ photographic certainable from to was about 15 20 feet from the rear the trailer the Vincens saw for the exhibit 1: first no.
There were no nation, State, County, official intersection or neither the nor the warning signs turnoff place col- Land Management Bureau of maintains lision. There a rather in- sign was small the road. dicating that a mine existed in the direc- testimony There was some that after the sign two-rut road. This was place accident certain conversation took be- up private party. appellant Even tween Vincen and Lazarus. Vincen asked testify Lazarus could not that he saw why replied Lazarus turned. Lazarus that sign before he turned. Vincen had he thought Vincen further back. Highway driven 28 several times before Lazarus asked whether Vincen saw his generally
the accident and knew some signal, replied and Vincen he saw dirt highway, minor roads entered the but red anything late to do too to avoid particular familiarity he had with the collision. Hilltop vantage point Mine Road. Vincen’s facts, On these district denied from truck was somewhat better than Lazarus’ Lazarus, that of but did not see the Vincen and, court, judg- after awarded pass approached road as he to Lazarus. ment to Mr. and Mrs. Vincen lost generally prevented was not public wages, hospital expenses, and medical Road, using Hilltop Mine but accord- general damages $9,969.15 totaling and to appellant’s ing witnesses on cross-exami- employer, McKay, Mr. Vincen’s Rhodes & damage to the truck and Mr. Mrs. Vincen affidavit of the loss $8,307.42. Defend- Lazarus disclose totaling several areas factual it carried
drill uncertainty ulti- appeal presents but one which would bear ant Lazarus’ legal question of issue, court below whether or not the sound- or not the mate “reasonably ing correctly Vincen’s horn was nec- concluded essary.” First, contributorily is as- fast was each of negligent. No error how parties traveling? finding negligence on Mr. Vincen stated on signed fifty deposition traveling dam- his that he part Lazarus or the amounts of. per appeared miles hour that Lazarus ages awarded. thirty per Mr. traveling miles hour. argues first Appellant Lazarus Lazarus stated in affidavit that he was denying his motion court erred *4 twenty “very slowly” to traveling or fifteen summary judgment under Idaho R.Civ.P. to appeared and that per miles hour Vincen deposi pleadings, the reason that the 56 for forty-five miles traveling in of be excess genuine is tions and affidavit showed Second, Lazarus per far behind hour. how respondent and that sues of material fact truck into drove the when he Vincen contributorily as negligent Vincen was opposite pass Mr. lane to Lazarus? The first basis for matter of law. depositions and Mrs. stated on their that, al complaints argument is since the them, while only that ahead of Lazarus was inter occurred at an lege that the accident that, though in Lazarus stated his affidavit and the answers admit section of two roads distance, Vincen he could not estimate the fact, question that Vincen there is no such enough to allow appeared far behind to be at an attempted Lazarus inter to overtake turn. a left ample opportunity make to contrary (a) (2), to I.C. 49-713 section § Third, important, precisely when most the statute constitutes and this of violation brake or did Lazarus on his accept this per cannot negligence se. We something was light as an indication that because, however, re reasoning, as line of happen? and Mrs. Vincen about to Mr. contend, pleadings use the spondents they first saw deposition stated generic in its sense “intersection” word they fif- of were within flash when only. legal question The as to whether car feet of the rear of Lazarus’ teen roads consti the intersection the two affidavit Lazarus stated in his trailer. defined statute tutes an intersection as three to signal on he turned his left-hand statutory in the rules of as used In the collision. view five seconds before remain, depends and its answer still road legal and the stand- factual issues fact, part upon a material name issue material, they ard to which Hilltop ly, whether or not this case the summary granted have court could not The publicly Mine Road maintained. to Lazarus. failed depositions and affidavit to fore fact. close this that, Appellant asserts since also as to Lazarus his affidavit appellant’s argu- for The second basis of the collision while summary judg- circumstances ment that his motion for counter-affidavits, presented no Vincens granted ment have been is Vin- should granted Lazarus’ the court should have to his horn as at- cen’s failure sound he to pursuant tempted I.C. to overtake Lazarus violated Idaho R.Civ.P. the last sentences of two 49-834(a) requiring a driver to sound § a mo opposition to require that reasonably necessary (e), to which “when horn as be summary judgment must tion operation” and that this viola- insure safe urged as the facts specific and as detailed negligence per se. Neither tion constituted argument motion. This support of the reasoning, accept how- can this line we the rule be (e) of paragraph ever, action misconstrues or not because whether such the remainder consider “reasonably necessary” peculiarly fails is to Idaho R.Civ.P. portion of the factual circum- rule. dependent upon all of itself appellant relies depositions 56(e) the accident. stances of intersection of concluded that the summary- that, a motion “[wjhen states Hilltop Highway 28 was Mine Road with provid- supported as judgment made and within regarded as an intersection be be must opposition ed in this rule” That 49-713(a)(2). meaning of I.C. added). § equally specific. (Emphasis provides that: statute a motion for provides that 56(b) R.Civ.P. defending party
summary judgment for a
any
driven
time be
shall at
“No vehicle
supporting
may be made “with or without
roadway
under
side of
left
provides
56(c)
affidavits.”
Idaho R.Civ.P.
following conditions:
rendered
judgment shall be
admis-
pleadings, depositions,
“if the
feet
approaching
within
“(2) When
affidavits,
file, together with the
sions on
”
* * *;
any
traversing
of or
intersection
issue
any,
genuine
that there is no
show
(Emphasis added).
moving
that the
material fact and
as
“high-
term
(u) defines the
I.C.
49-101
judgment as a mat-
party
entitled
way” as
added). No-
(Emphasis
ter of
law.”
require
filing of
where does the rule
way
nature
“every
place whatever
merely
the mo-
because
counter-affidavits
public
a matter
open
to the use of
may
supported
What
affidavits.
purposes
of vehicular
*5
support
opposi-
for and
is critical
is
by the state
is
travel which maintained
tion to a motion
or
taxing subdivision
or some
Idaho
of
equal
upon
based
details of
factual
govenment
the
unit
or
federal
thereof
specificity
source
regardless of whether the
agency
(Emphasis
or
add-
thereof.”
depositions
is
or affidavits.
ed.)
case,
by
opposition
the
In the instant
“street
49-514(a) defines the terms
I.C. §
summary judg
Vincens to the motion for
be-
entire width
highway”
or
as “[t]he
upon specific details con
ment was based
way
every
boundary lines of
tween the
already
file.
depositions
tained in their
any part thereof
publicly mantained when
necessity
Lazarus of
filed an affidavit
purposes
open
public for
is
the use of the
support of
under Idaho R.Civ.
his motion
added).
(Emphasis
travel.”
vehicular
precisely
had at no time
P. 56
because he
“road-
49-514(c)
the term
I.C.
defines
§
previously placed any
as
facts on record
im-
way”
portion
highway
a
as “[t]hat
to his
the circumstances of
version of
ordinarily
designed, or
used
proved,
indicated,
previously
collision.
travel,
the berm or
exclusive of
vehicular
depositions
affidavit and
Vincens
*”
**
added).
(Emphasis
shoulder.
genuine
fact.
issues of material
disclosed
“inter-
term
49-515(a) defines the
I.C. §
by
required
To have
additional affidavits
section”
restating
the same facts would
Vincens
pro-
procedure
embraced within
engage in
area
have been to
a useless
“[t]he
Thus,
the lateral
connection
required by
longation
this case.
or
not
the rule in
lines, or,
none,
the lateral
then
genuine
failed to
the lack of
curb
Lazarus
show
two
roadways
boundary
and that he was
lines
issues
material
at,
law,
matter of
judgment as a
another
join
entitled to
highways
one
(2)
which
his burden.1
which was
at, right angles, or
approximately
traveling
area within
vehicles
issues
Turning then
one of the
any other
joining at
highways
below,
different
parties
presented
(deposition
(1965)
949,
5G;
959-951
399 P.2d
Bank
Nat.
R.Civ.P.
Tri-State
Idaho
opposition
Gateway Storage Co.,
v. Western
Idaho
considered
factually
in
;
found
(1968)
but
409,
543,
Otts
411-412
P.2d
issues) ;
genuine
And
to raise
v.
Brough,
sufficient
P.2d
223-224,
229,
Waddell,
Idaho
Deshazer v.
;
Tompkins,
(1965)
v.
erton
(1965)
359-360,
Clontz v.
Fortner, 88 Idaho
angle may
(Emphasis
come in conflict.”
isted in this
inapposite
case are either
added).
distinguishable.
Knight,3
In Woodman v.
Highway
intersection of
Al
30 and
By
statutory provisions,
legisla-
fresco Road apparently
was assumed
carefully
ture has
specifically
indicated
parties
statutory
and the Court
a
to be
“roadway”
traveling
normal
intersection,
thus,
pre
the issue here
portion
a “highway,”
“highway”
that a
sented was not raised.
Kidd
Likewise in
maintained,”
must be “publicly
and there-
Inc.,4
parties,
v.
Associated,
Gardner
fore that the intersection of some road not
and the
court assumed
existence of
publicly
maintained with
cannot
Perryman
statutory intersection. Bale v.
be a statutory “intersection” within the
plainly
county
involved two
roads
meaning of I.C.
49-713(a)(2). The evi-
no issue as to
existence
dence in the case at
clearly
bar showed
statutory
In
intersection.
Howard v.
Hilltop Mine
publicly
Road was not
main-
consisted',
Missman,6
statutory
violation
tained. Therefore it
statutory
formed no
into-
crossing
line
over a marked solid
intersection with Highway 28.
passing
at an-
passing
rather than
zone
legislative
This
supported by
Safe
intersection.
case of Crossler
judicial
both
authority and common sense.
Stores, Inc.,7
way
Nebraska
and its two
Several cases
surrounding jurisdic
Becks v.
progeny, Nygaard
v. Stull8
held,
tions
statutory
have
provisions
under
Schuster,9
then-
all
decided under the
not materially
Idaho’s,
different from
highways-
statutory
extant
definitions of
there is no statutory intersection formed
public
which did not contain
maintenance-
when one of the intersecting roads is not
required
as an essential element but rather
publicly
Thus,
maintained.
it has been
only public
Finally,
use.10
Florke
held that a driver is
guilty
of negligence Peterson,11
reached
the'
the decision was
*6
per se when he attempts to overtake an
excuse,
pre
legal
basis
with no issue
other driver but collides with him when the
statutory in
as to the
sented
existence of
other driver attempts to turn onto an ob
tersection,
Surety
while Reese v. National
private
scure
road.2
Corp.12 plainly
publicly main
involved
tained roads.
We find the foregoing
persuasive,
cases
while the
by
cases cited
appellant
statutory provisions
for the
and the-
The Idaho
proposition
pertinent
the factual.
judicial
that a
statutory
decisions
intersection ex-
401,
Commission,
Co.,
2.Edwards
v.
146 Colo.
361
Twain
dustrial
Lumber
123 Cal.
App.2d
(1961)
(1953 Comp.N.M.
675,
(1954)
(no
973
64-
§
267 P.2d
P.2d
347
(a)
(2) construed);
private
intersection
Moore v. Arm
18-13
strong,
formed where obscure
;
(1960)
350,
point
road
284
entered
N.M.
355
at a
67
P.2d
unmarked
by warning signs;
Douglas
Gigandet,
245,
2d
Utah
Cal. Vehicle Code §§
(1958).
(Deering 1935)
86 and 530
P.2d 932
con
strued) ; Leach v. Great Northern Rail
(1963).
453,
3. 85 Idaho
specially). appraised. appel- argument
In his
this
greater injustice
before
court
“The
would be to the
lant
party
asserts
the trial court erred in
deprived
would be
denying
summary
jury
judgment
Otherwise,
his motion for
verdict.
a decision based
determines,
for two reasons. This
prevail
court
less evidence would
over a
however, that the denial
the motion for
verdict
reached on more evidence and
proper
judgment
inasmuch as
away
would be taken
from
bearing
given
certain factual issues existed
the victor and
despite
the loser
legal questions presented.
having
greater
With
victor
weight of
disagreement
conclusion
I have
evidence.
This would defeat
the fun-
opinion.
purpose
I concur in
damental
foregoing
judicial
therefore
inquiry.
“We
hold
if a motion for sum-
However,
regarding
doubt
serious
mary judgment
improperly
denied the
appellant’s
the denial of
motion
error is not reversible for the result be-
properly
con-
before this court for
merged
comes
subsequent
in the
trial.”'
presented by
sideration is
conclusions
though his reverse improperly denied. To trial the verdict of
findings of a
court or
in
opposing party
order
jury
for the
part of
rectify
alleged
on
an
mistake
Following position assess jury is court or
n entire credibility and record In such case of the witnesses.
demeanor appear to be that rule would
the sounder should be en- party prevailing at trial rely on the result
titled to merits. a motion of law
Issues preserved when the
summary judgment are inherent are
same issues law rendered.
judgment trial court should any reason the
If for after trial that
determine the motion in error granted the should have been by grant- rectify the error can still *9 notwithstanding the judgment ver-
ing a I.R.C.P., 50(b) (c). Rule See
dict. that the denial of my conclusion
It is is not re- appeal from viewable