*1 620 P.2d 1096

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. 100 Idaho at 599 at P.2d a law whether as matter of gence but this proposition From the court reasoned negligence equal to or contributory the approaching that actions of the driver than the greater not the the acci- cause of sum This test be met must party. dent, since it from the vehi- stopped arose granted. Davis mary judgment can be See entering highway cle’s in of the front the Bushnell, 652 v. approaching vehicle. driver’s The court (1969). in concluded that the uncontra- approach- dicted evidence disclosed that the present does facts The instant case ing driver proper had maintained a lookout of negligence from which an inference stopped and had the observed vehicle and legitimately regarding drawn could properly rely therefore could upon the as- It is well that Westover’s conduct. settled sumption that stopped the vehicle would motor vehicle has a person operating “a a right the yield way. of Potter v. Domingo duty keep proper a lookout.” supra; Hickox, Cochran v. supra. How- Phillips, P.2d 297 390 ever, case, in the instant the evidence not Palmer, P.2d Drury Idaho defendant, Westover, scope of the court described was maintaining proper a as he lookout duty as follows: approached along the defendant’s vehicle “Appellant duty main- was under Viewing side the road. the evidence ap- tain a lookout other vehicles we most favorable to the as must proaching the intersection. The summary judgment, the record discloses looking, merely not but is obser- one of plaintiff stopped that even though the vation, the ne- imposing upon motorist motorcycle edge high- on his cessity being as traf- observant to the traffic, plain oncoming view general fic and situation at or defendant, in his nevertheless the vicinity of the intersection. He must look see the deposition testified that he did not prudent and careful manner just an instant before him to what a in the enable together impact. That with de- ordinary exercise of care and caution for he was testimony fendant Westover’s safety of himself and others would have looking plaintiff’s at the uncle across under him, justify seen like circumstances.” 84 Idaho street waving 562, 375 P.2d at 127. West- jury’s conclusion that defendant over was maintaining proper Jerry lookout seven on, near, tragic circumstances, victim of these has no entering for vehicles recollection of the accident. His uncle- 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, 330 P.2d 327 who one child and a bleness a motorist sees seemingly approves por the Court of that highway, ought on one side of a motorbike n.1, an tion of instruction set forth in warning pro- recognize sign that as a you telling that: “If vigilance ducing degree of increased find from evidence before the colli him directly as to what reasonably sion Mrs. Schwabe saw or as a effort It takes little remove side. prudent should have seen Kenneth gas pedal; it costs little in a foot from Gayhart nearing crossing Hawthorne time. Avenue, you and if further find that Mrs. seeing young Gayhart Schwabe after or af McFADDEN, J., concurs. ter should she have seen him in the exercise care, down, ordinary have should slowed aside, stopped, thereby turned crash,

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 .” . . .