Summary
In Wyland v. Twin Falls Canal Co., 48 Idaho 789, 285 P. 676, our court pointed out that under similar death statutes, California courts have held that damages may be allowed for loss of "companionship," "protection," "bodily care," "intellectual care," or "moral training" providing it sufficiently appears that pecuniary damages resulted from such loss.
Summary of this case from Gardner v. HobbsOpinion
No. 5342.
February 25, 1930.
APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.
Action for damages for death. Judgment for plaintiffs. Affirmed.
Bothwell Chapman, for Appellant.
Negligence is the basis for recovery in an action for damages for personal injuries, and the negligence must be proved by a preponderance of the evidence, as the proximate cause of the injuries complained of, and where there is a failure of proof, it is error for the court to refuse a requested nonsuit or directed verdict made at the close of all the evidence. ( Chicago, R.I. P. R. Co. v. West, 124 Okl. 147, 254 P. 91; Thomas v. National Gas Producing Co., 9 La. App. 680, 121 So. 649; Muggenburg v. Fink, 166 Minn. 411, 208 N.W. 134; Klink v. Bany, (Iowa) 224 N.W. 540.)
In an action for damages for personal injuries received by a person in a collision with a motor vehicle, a person who steps from a zone of safety into a zone of danger in attempting to cross a city street between intersections without looking in the direction from which traffic could be expected, or after having looked in that direction steps heedlessly in the path of an oncoming automobile, when such person's view is wholly unobstructed and he is without physical infirmities, is guilty of contributory negligence proximately causing his injury; and the driver of the automobile traveling upon the upper side of the street at a lawful rate of speed, with brakes in proper condition, on a street where there is no traffic and no obstruction, in broad daylight, and keeping a proper lookout upon the street, and who does all in his power to avoid striking the pedestrian, is not guilty of negligence. ( Mathes v. Schwing, (La.App.) 119 So. 577; Johnson v. Item Co., 10 La. App. 671, 121 So. 369; Rang v. Klawun, 198 Wis. 1, 223 N.W. 121; Harrison v. Carlisle, 9 La. Ann. 517, 121 So. 216; Thomas v. National Gas Producing Co., 9 La. App. 680, 121 So. 649; Neeb v. Jacobson, 245 Mich. 678, 224 N.W. 401; Brickell v. Trecker, 176 Wis. 557, 186 N.W. 593; Lord v. Stacy, 68 Cal.App. 517, 229 P. 874.)
In an action for damages occasioned by the death of a person, not a minor, brought by his heirs or personal representatives, medical, hospital, nurse, ambulance and burial expenses cannot be recovered unless such expenses have been paid by the heirs or representatives or unless they are liable for their payment. ( Jutila v. Frye, 8 Fed. (2d) 608; Regan v. Davis, 290 Pa. St. 167, 54 A.L.R. 1073, 138 Atl. 751; Salmon v. Rathjens, 152 Cal. 290, 92 P. 733; C. S., sec. 6644; Cal. Code Civ. Proc., sec. 377.)
In an action under C. S., sec. 6644, for wrongful death, the damages must be confined to the actual pecuniary loss sustained by the plaintiff, or those represented by him, as distinguished from mental anguish, sorrow, solatium for wounded feelings, grief or punishment. ( Dickinson v. Southern Pac. Co., 172 Cal. 727, 158 P. 183; Morgan v. Southern Pac. Co., 95 Cal. 501, 30 Pac. 601; Munro v. Pacific Coast Dredging R. Co., 84 Cal. 515, 18 Am. St. 248, 24 P. 303; Redfield v. Oakland Consol. St. Ry. Co., 110 Cal. 277, 42 P. 822.)
Turner K. Hackman, for Respondents.
Where plaintiff's evidence makes a prima facie case, a motion for nonsuit is properly denied, for "defendant must be deemed to have admitted all the facts of which there is any evidence, and all the facts which the evidence tends to prove it, and this evidence must be, and will be, most strongly interpreted against the defendant." Citing a number of decisions of this court. ( Schleiff v. McDonald, 37 Idaho 423, 216 P. 1044.)
It is error to sustain a motion for a nonsuit if, under the evidence, it proves or tends to prove a prima facie case. ( Dellwo v. Petersen, 32 Idaho 172, 180 P. 167.)
When the parties to this action appeared before court and jury, both sides were confronted with an assumption of law which was that "both the plaintiff and the defendant must be held or deemed to have exercised due care as a matter of law, and not as a matter of proof; so that due care of either party need not be proved — such proof is not demanded, but the plaintiff claims that the defendant comes within an exception to the general rule. The existence of the exception must be proved by the plaintiff by a preponderance of the evidence — such proof is demanded of him. This is a 'flexible assumption.' "
"In a negligence case, if the defendant claims that the plaintiff comes within the exception to the general rule applicable to him (the plaintiff), the defendant must prove the existence of the exception, by a preponderance of the evidence. That occurs in the defense of contributory negligence.
"The defense of contributory negligence is a form of confession and avoidance." (The Law of Proof in Judicial Proceedings, by Fisk, pp. 25, 27, 51; Clark v. Los Angeles S. L. R. Co., (Utah) 275 P. 582; Rush v. Lagomarsino, 196 Cal. 308, 237 P. 1066.)
"The driver of an automobile has no right to assume that the road is clear, but under all the circumstances and at all times he must be vigilant and must anticipate and expect the presence of others." ( Minor v. Foote, (Cal.App.) 280 P. 197, 199; Pritchard v. Hockett, 140 Wn. 499, 249 P. 989.)
"It is the duty of the driver of an automobile, where the view is unobstructed, to see persons on the road in front of the machine." ( Nichols v. Nelson, 80 Cal.App. 590, 252 Pac. 739.)
While walking on a public highway in the city of Twin Falls Oscar S. Wyland was run down and injured by a Ford truck driven by an employee of defendant, from which injuries he later died. Alleging negligence, plaintiffs instituted this action under C. S., sec. 6644, and obtained a judgment awarding them $5,000. Defendant contends that the evidence does not support the verdict; that defendant or its agents were not shown to be negligent, and that contributory negligence, as a matter of law, should be imputed to the deceased Wyland.
The accident occurred on 6th Avenue West in Twin Falls. This avenue is in one of the outlying districts of the city in a sparsely settled neighborhood. The entire right of way is 80 feet wide but at the time of the accident the traveled portion was only 16 or 18 feet wide. The rest of the highway was covered with weeds. There were no sidewalks along the street where the accident occurred.
Defendant's truck, driven by one Riles, was proceeding north on this street at a speed of 15 or 20 miles an hour. According to Riles' testimony, as he approached the intersection of 6th Avenue West and 3rd Street West, he looked ahead and saw no pedestrians. He then looked to the right and left on 3rd Street West — the street he was about to cross — and did not again look ahead until he had traveled about 60 feet beyond the intersection when he suddenly became aware of the presence of a pedestrian immediately in front of him, about six feet away. Wyland was struck in the back by the right fender of the car, which knocked him to the ground in such a way that the right wheels passed over his body. He was found lying in the traveled portion of the highway, about three feet from its edge. He received, among other injuries, severe injuries to his head from which he died several weeks later.
The tracks of the truck indicated that it had skidded somewhat after hitting Wyland and turned slightly to the left. It had been brought to a stop in the middle of the highway about 25 feet from where Wyland had been struck.
There were no other near eye-witnesses of the accident and we do not, of course, have Wyland's version. The only testimony in the record bearing on his actions prior to the accident was given by one Nuzman, who was standing, at the time, over a block away. He testified that he saw Wyland diagonally crossing a vacant lot at the corner of 6th Avenue West and 3rd Street West, and proceeding into that portion of the right of way of 6th Avenue West covered by weeds. He was last observed by Nuzman walking through the weeds about fifteen feet from the edge of the traveled portion of the highway.
The evidence does not show very clearly whether Wyland was crossing the highway or proceeding along it laterally. There was, however, testimony that on account of the absence of sidewalks pedestrians were in the habit of walking along the edge of the street.
No objections are made or exceptions taken to the instructions given by the trial court covering negligence, contributory negligence, proximate cause and the doctrine of the last clear chance, or to the instruction that if the unfortunate occurrence was a mere accident, defendant would not be liable.
The points urged in this appeal concern, therefore, only the evidence or lack of evidence and the conclusions to be drawn therefrom. A motion for a nonsuit by the defendant, which was renewed at the conclusion of defendant's testimony, properly raises these points. ( Blackfoot City Bank v. Clements, 39 Idaho 194, 226 P. 1079; Barrow v. B. R. Lewis Lumber Co., 14 Idaho 698, 95 P. 682; Shields v. Johnson, 12 Idaho 329, 85 Pac. 972.)
A plaintiff should not be nonsuited unless it appears that the evidence in his behalf, upon the most favorable construction the jury would be at liberty to give it, would not warrant a verdict for him. ( Black v. Lewiston, 2 Idaho 276, 13 Pac. 80; Lowary v. Tuttle, 36 Idaho 363, 210 P. 1006; Tipsword v. Potter, 31 Idaho 509, 6 A.L.R. 527, 174 P. 133.)
Defendant cites numerous cases bearing upon the questions of whether its servant Riles was negligent and whether Wyland was guilty of contributory negligence.
The facts in each case must be considered and we believe the facts in this case bring the consideration to be given the evidence within the rule laid down in Hooker v. Schuler, 45 Idaho 83, 260 P. 1027, that the various questions urged were for the jury. There was sufficient evidence to sustain the verdict that defendant was negligently responsible for Wyland's death, and therefore liable in damages.
Error is assigned because the court instructed the jury that in awarding damages it was proper to consider medical and funeral expenses. To constitute an element of damages in an action for the death of a person it is sufficient if it appears that plaintiffs are obligated for medical and funeral expenses. ( Jutila v. Frye, 8 Fed. (2d) 608; Western Gas Construction Co. v. Danner, 97 Fed. 882, 38 C.C.A. 528; Donnelly v. Hufschmidt, 79 Cal. 74, 21 P. 546; Abilene v. Wright, 4 Kan. App. 708, 46 P. 715; Fisk v. Poplin, 46 Cal.App. 587, 189 P. 722; 17 C. J. 803.) Actual payment, prior to bringing the action, is not necessary.
Error is also assigned because of an instruction that the jury might consider as an element of damage the value of decedent's services in "the superintendence and attention to and care of his family and the education of his children." In the same instruction the jury was told that damages should be assessed "with reference to the pecuniary loss sustained by the wife and children of the deceased."
Actions for wrongful death and the recovery of damages are governed by C. S., secs. 6643 and 6644. The California courts in construing an identical statute have on numerous occasions held that while damages may not be allowed for mental suffering or as a solatium for wounded feelings caused by the death of the deceased, they may be allowed for loss of "companionship," "protection," "bodily care," "intellectual culture" or "moral training," providing it sufficiently appears that pecuniary damages resulted from such loss. ( Beeson v. Green Mountain Co., 57 Cal. 20; Ruppel v. United Railroads, 1 Cal.App. 666, 82 Pac. 1073; Dickinson v. Southern Pac. Co., 172 Cal. 727, 158 Pac. 183; Parsons v. Easton, 184 Cal. 764, 195 P. 419; Griffey v. Pacific Elec. Ry. Co., 58 Cal.App. 509, 209 Pac. 45; Tolley v. Engert, 71 Cal.App. 442, 235 P. 652. See, also, Burbidge v. Utah Light etc. Co., 57 Utah, 566, 196 Pac. 556; Marshall E. T. Ry. Co. v. Riden, (Tex.Civ.App.) 194 S.W. 1163; St. Louis Ry. Co. v. Anderson, (Tex.Civ.App.) 206 S.W. 696; The Erie Lighter 108, 250 Fed. 490.)
The California courts seem to have been influenced by decisions in other states and in England, construing statutes somewhat different from the California statute, in holding that recovery may only be had for "pecuniary damages." C. S., sec. 6644, allows recovery for "such damages" as may "under all the circumstances of the case be just." It is, however, unnecessary to determine whether under our statute recovery is limited to "pecuniary damages." (See Kelly v. Lemhi Irr. etc. Co., 30 Idaho 778, 168 P. 1076; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91.) It is sufficient to note that the jury was so instructed and that the amount of the damages awarded indicates that the jury did not place an excessive pecuniary value on the loss of companionship, etc.
Error is also assigned because the court refused to strike the testimony of E.E. Wyland, son of the deceased, concerning his father's yearly earnings. Cross-examination did not establish that the son's knowledge or his conclusions were altogether based on hearsay. Therefore, the motion was too broad and was properly denied. ( Idaho Farm Co. v. Brackett, 44 Idaho 272, 257 P. 35; Snook v. Olinger, 36 Idaho 423, 211 Pac. 559. See, also, Witte v. Atlantic Coast Line R. Co., 171 N.C. 309, 88 S.E. 435.)
The judgment is affirmed. Costs awarded to respondents.
Budge, T. Bailey Lee, Varian and McNaughton, JJ., concur.