Opinion
No. 9650.
April 13, 1966.
APPEAL FROM DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT, ELMORE COUNTY, MERLIN S. YOUNG, J.
Robert F. McLaughlin, Mountain Home, for appellant.
Elam, Burke, Jeppesen Evans, Boise, for respondents.
This Court is firmly committed to the rule a trial court should not take a case from the jury unless, as a matter of law, no recovery could be had upon any view which properly could be taken of the evidence. * * * And we held in Bennett v. Deaton, 57 Idaho 752, 768, 68 P.2d 895, where the minds of reasonable men might differ, or where different conclusions might be reached by different minds, the questions as to the existence of negligence and contributory negligence are questions for the jury.
At any rate, it is generally understood in negligence cases that the final cause immediately antecedent to the infliction of the injury is the proximate cause of the injury. * * * Gulf, C. S.F.R. Co. v. Ballew, Tex.Civ.App., 39 S.W.2d 180.
"The last clear chance doctrine shall make the defendant liable for injury to the plaintiff as the defendant saw or should have seen the peril of the plaintiff and by exercising all due diligence could have avoided injuring him, notwithstanding the fact the plaintiff through his own negligence placed himself in the position of danger from which he could not remove himself," is a point of law; but whether or not the defendant by use of reasonable diligence could have avoided injury to the plaintiff is a question of fact to be determined by the jury. Tarter v. Missouri, K. Tex. R. Co., 119 Kan. 365, 239 P. 754, 80 A.L.R.2d 108.
"This court is firmly committed to the rulings that a trial court should not take a case from the jury unless it is a matter of law, no recovery could be had upon any view which properly could be taken of the evidence * * * where the minds of reasonabe men might differ, or where different conclusions might be reached by different minds, the questions as to the existence of negligence and contributory negligence are questions for the jury. Stearns v. Graves, 62 Idaho 319, 111 P.2d 882; Dawson v. Salt Lake Hardware Co., 64 Idaho 666, 136 P.2d 733.
"Whether a driver of an automobile approached at a speed exceeding 15 mph, intersection obstructed to view where collision of another automobile occurred was contributory negligence, held for jury under evidence." Hamilton v. Carpenter, 49 Idaho 629, 290 P. 724; Stallinger v. Johnson, 65 Idaho 101, 139 P.2d 460.
"Where automobile driver entered intersection at 35 or 40 miles per hour and failed to see automobile which had entered from the left, until after collision, he was negligent, and, his negligence was proximate cause of collision." Bell v. Carlson, 75 Idaho 193, 270 P.2d 420.
"Where plaintiff's automobile entered intersection first, before defendant's automobile approached it, plaintiff had right of way over defendant approaching from the right." Bell v. Carlson, 75 Idaho 193, 270 P.2d 420.
"A plaintiff's violation of law of road, unless such violation was a proximate contributing cause of his injury, does not bar his recovery of such injury." Bell v. Carlson, 75 Idaho 193, 270 P.2d 420.
"Driver while traveling at an unlawful speed at time of accident forfeited any right of way he might otherwise have had." Bell v. Carlson, 75 Idaho 193, 270 P.2d 420.
Plaintiff-appellant was guilty of negligence as a matter of law in driving into the intersection from the left-hand side of defendant-respondent's vehicle without seeing the respondent's vehicle approaching and without taking any diversionary measures to avoid collision with the oncoming vehicle. Coughran v. Hickox, 82 Idaho 18, 348 P.2d 724; Drury v. Palmer, 84 Idaho 558, 375 P.2d 125; Yearout v. Chicago M., St. P.R. Co., 82 Idaho 466, 354 P.2d 759; Bale v. Perryman, 85 Idaho 435, 380 P.2d 501; Domingo v. Phillips, 87 Idaho 55, 390 P.2d 297; Leader v. Atkinson, 49 Cal.App.2d 265, 121 P.2d 759; 5 Am.Jur. 392, Automobiles, § 265; 7 Am.Jur.2d 901, Automobiles, § 355; 60 C.J.S. Motor Vehicles § 284, p. 661.
Appellant will not be permitted to say that he looked and yet failed to see the approaching Bollinger automobile when the evidence without dispute shows that he could have seen it had he looked. Drury v. Palmer, 84 Idaho 558, 375 P.2d 125; Coughran v. Hickox, 82 Idaho 18 at 26, 348 P.2d 724; Bale v. Perryman, 85 Idaho 435 at 442, 380 P.2d 501; Ineas v. Union Pacific R. Co., 72 Idaho 390 at 400, 241 P.2d 1178; Yearout v. Chicago M., St. P.R. Co., 82 Idaho 466, 354 P.2d 759.
Judgment for respondents under Rule 50(b) of the Idaho Rules of Civil Procedure rests in the first instance on the sound judicial discretion of the trial judge and in the absence of abuse of that discretion will not be disturbed on appeal. Cone v. West Virginia Pulp Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849; De Pascale v. Pennsylvania R. Co., 3 Cir., 180 F.2d 825; Karnowski v. Skelly Oil Co., (C.A. 10) 174 F.2d 770.
Where the evidence in support of appellant's case as a matter of law will not support a verdict in his favor, a motion for judgment notwithstanding the verdict should be granted. Mabe v. State ex rel. Rich, 86 Idaho 254, 385 P.2d 401.
Rule 50(b) was intended to obviate the necessity of a new trial whenever the trial judge finds he has erroneously refused to grant an involuntary dismissal or to direct a verdict. Madden Furniture v. Metropolitan Life Ins. Co., 5 Cir., 127 F.2d 837; Peigh v. Baltimore O.R. Co., 92 U.S. App.D.C. 198, 204 F.2d 391, 44 A.L.R.2d 671.
Findings of Fact and Conclusions of Law by the trial court are unnecessary when judgment is granted pursuant to Rule 50(b) or 50(c) of the Idaho Rules of Civil Procedure, such judgment being a determination by the court that no issue of fact remains. Weir v. Chicago Plastering Institute, (C.A. 7th) 272 F.2d 883; Mackay v. Costigan, (C.A. 7th) 179 F.2d 125.
Plaintiff-appellant Franklin D. Loosli commenced this action seeking damages caused by an automobile collision at the uncontrolled intersection of East 6th South Street and Woodruff Lane near Mountain Home. Loosli was driving his automobile east on East 6th South Street at approximately 25 miles per hour. Upon approaching the intersection he slowed down and not seeing other vehicular traffic, entered the intersection. Defendant-respondent Lester G. Bollinger was driving his automobile north on Woodruff Lane at a speed of 45 to 50 miles per hour. When 60 feet from the intersection, Bollinger first saw the plaintiff's car entering the intersection. In an unsuccessful attempt to avoid a collision, Bollinger applied his brakes, leaving skid marks of 42 1/2 feet. The Loosli car was approximately in the middle of the intersection, 2 1/2 feet north of the south edge of its lane, when it was struck in the center of its right side by the Bollinger car.
The accident occurred shortly after noon; the visibility was clear; there were no other cars in the vicinity; and, except for a silo located in a field on Bollinger's left, there was no obstruction of each driver's view of the other as he approached the intersection.
The jury returned a verdict in favor of the plaintiff in the sum of $17,500. After judgment was entered thereon, the defendants moved for a judgment notwithstanding the verdict. This motion was granted on the grounds that "the plaintiff was guilty of contributory negligence which was a proximate cause of the accident and that the evidence was insufficient to support the verdict." The verdict was set aside and judgment was entered for defendants. From that judgment, plaintiff appeals.
In a recent case involving facts almost identical to those herein, this court held that the plaintiff's alleged contributory negligence and the defendant's alleged negligence were questions for the jury and that neither should be decided by the trial court as a matter of law. Nagel v. Hammond, 90 Idaho, 408 P.2d 468 (1965).
A motion for judgment notwithstanding the verdict under I.R.C.P. 50(b) admits the truth of the adversary's evidence and every inference of fact which legitimately may be drawn therefrom and should be granted only in the absence of evidence to support the verdict. Mabe v. State ex rel. Rich, 86 Idaho 254, 385 P.2d 401 (1963).
In the present case the evidence is sufficient to support a finding by the jury that the defendant was negligent in failing to yield the right-of-way, contrary to I.C. § 49-727(a) and in failing to reduce his speed, contrary to I.C. § 49-701(c).
I.C. § 49-727(a): "The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway."
I.C. § 49-701(c): "The driver of every vehicle shall * * * drive at an appropriate reduced speed when approaching and crossing an intersection * * *."
On the other hand, the evidence as to the plaintiff's contributory negligence is not so clear as to require determination by the court.
"* * * plaintiff cannot be adjudged guilty of contributory negligence merely because he did not see defendant when he entered the intersection. Plaintiff's conduct is to be determined by its conformity to or departure from what an ordinarily prudent person would have done under all the circumstances and conditions then existing." Nagel v. Hammond, supra, 408 P.2d at 472.
Whether the plaintiff was guilty of contributory negligence in failing to see the defendant was for the jury to determine.
Whether the vehicles entered the intersection at "approximately the same time," in which case plaintiff would be required to yield the right-of-way to defendant, was, under the present facts, also a question for the jury.
I.C. § 49-727(b): "When two vehicles enter an intersection from different highways at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right."
The judgment is reversed and the cause remanded with instructions to the trial court to reinstate the judgment originally entered upon the jury's verdict in accordance with I.C. § 49-1404.
Costs to appellant.
McFADDEN, C.J., and TAYLOR, SMITH and SPEAR, JJ., concur.