Where the injured party is killed or so incapacitated that he cannot testify and there are no eyewitnesses to the accident, plaintiff may rely upon the presumption that the injured person was exercising due care for his own safety. Koch v. Elkins, 71 Idaho 50, at pages 55 and 56, 225 P.2d 457; Neff v. Hysen, 72 Idaho 470, at pages 474-475, 244 P.2d 146; Webb v. Gem State Oil Co., 56 Idaho 465, 55 P.2d 1302; Geist v. Moore, 58 Idaho 149, 70 P.2d 403; Dept. of Finance of State v. Union Pac. R. Co., 61 Idaho 484, 104 P.2d 1110; Brown v. Graham, 62 Idaho 388, 112 P.2d 485; Madron v. McCoy, 63 Idaho 703, 126 P.2d 566; Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651. Where there is substantial evidence to support a finding of contributory negligence the question should be submitted to the jury unless plaintiff is as a matter of law contributorily negligent.
In fact, no Idaho case which reverses the lower court's judgment on this basis has been brought to our attention. But see Koch v. Elkins, 71 Idaho 50, 225 P.2d 457 (1950); Packard v. O'Neil, 45 Idaho 427, 262 P. 881 (1927). In addition to the deference which Idaho law pays to the determination of the trial court on this issue, it is well to point out that United States courts of appeals generally regard highly the interpretation of state law rendered by district courts.
In support of that ruling respondent argues that the record also reveals that Reece was incompetent to testify because he had an inadequate opportunity to observe the Olson vehicle as it passed him. Since we determine here that the testimony was not remote as a matter of law, and that Reece was competent to give his opinion, we reject both grounds for excluding the testimony. In Koch v. Elkins, 71 Idaho 50, 225 P.2d 457 (1950), a case in which the question of whether the driver of a vehicle involved in a one-car accident was negligent was at issue, the trial court allowed into evidence the defendant's plea of guilty to a charge of reckless driving occurring three quarters of a mile away and less than two minutes before the time of the accident. In that case we said:
The parties' theories were presented to the jury by the instructions and the instructions in no manner prejudiced the appellants. Turner v. Purdum, 77 Idaho 130, 289 P.2d 608; Hooker v. Schuler, 45 Idaho 83, 260 P. 1027; Graham v. Milsap, 77 Idaho 179, 290 P.2d 744; Koch v. Elkins, 71 Idaho 50, 225 P.2d 457. Where the verdict is amply supported by sufficient evidence and admission of evidence or testimony, if error, was harmless, every reasonable presumption will be made to support the judgment.
In the ultimate determination of whether one, alleged to have been operating within the scope of his employment when and where he committed a tort, was then and there functioning as a servant and not as an "independent contractor," an important guidepost is the right to control reserved by the employer over the functions and duties of the agent. Koch v. Elkins, 71 Idaho 50, 57, 225 P.2d 457. See: Joslin v. Idaho Times Publishing Co., 56 Idaho 242, 53 P.2d 323; 6 Blashfield Auto Law (3rd Ed. 1966) § 252.11, p. 61; Restatement, Agency 2d, § 220, comment d. Since the principal concern is with the "right to control" the activities of the agent reserved by the employer and not with the extent of control actually exercised, except insofar as actual control may evidence the right, Burlingham v. Gray, 22 Cal.2d 87, 137 P.2d 9 (1943), the fact that the agent may be imbued with some discretion in the performance of his duties is not determinative of his status for purposes of the imposition of liability for his negligence against his principal.
See Adams v. Pacific Motor Trucking Co., 172 Cal.App.2d 505, 342 P.2d 351 (1959); Duvall v. T.W.A., 98 Cal.App.2d 106, 219 P.2d 463 (1950). Cf. State ex rel. Rich v. Sweet, 82 Idaho 191, 351 P.2d 230; Hayward v. Yost, 72 Idaho 415, 242 P.2d 971; Koch v. Elkins, 71 Idaho 50, 225 P.2d 457. The rule that where there is any competent evidence, though conflicting, to sustain the verdict, the verdict will not be set aside has no application to a trial court in passing upon a motion for a new trial.
The presumption that a decedent was exercising due care for his protection and self preservation is a rebuttable presumption, and where the actions of the deceased immediately prior to and at the time of the accident are substantiated by the evidence, and there is no substantial conflict in such testimony, the refusal to instruct the jury on such rebuttable presumption is not prejudicial error requiring the reversal of a judgment. Neff v. Hysen, 72 Idaho 470, 244 P.2d 146; Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317; Koch v. Elkins, 71 Idaho 50, 225 P.2d 457. TAYLOR, Justice.
Larsen v. Jerome Co-operative Creamery, 76 Idaho 439, 283 P.2d 1096. For them to prevail in this defense they had to prove such defense by a preponderance of the evidence, for if the evidence is in equipoise, the law requires a decision against the party having the burden of proof. Koch v. Elkins, 71 Idaho 50, 225 P.2d 457. Serious doubt arises as to the propriety of giving an instruction on the presumption of due care in an action such as this where contributory negligence has been plead and relied upon as an affirmative defense.
The question of damages in personal injury vases is strictly within the province of the jury as the triers of fact; and any reduction of the jury verdict is primarily within the sound discretion of the trial judge. Once a party has requested the trial judge to reduce the amount of the verdict and he has done so, the exercising of his discretionary power will not be disturbed on appeal. Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682; Gorton v. Doty, 57 Idaho 792, 69 P.2d 136; Hayward v. Yost, 72 Idaho 415, 242 P.2d 971; O'Connor v. Meyer, 66 Idaho 15, 154 P.2d 174; Koch v. Elkins, 71 Idaho 50, 225 P.2d 457; Hepp v. Ader, 64 Idaho 240, 130 P.2d 859; Gardner v. Hobbs, 69 Idaho 288, 206 P.2d 539, 14 A.L.R.2d 478; Garrett v. Taylor, 69 Idaho 487, 210 P.2d 386. PORTER, Justice.
Where the evidence leaves the issue of negligence in equipoise a decision is required against the plaintiff. Koch v. Elkins, 71 Idaho 50, 225 P.2d 457, 461; Splinter v. City of Nampa, 74 Idaho 1, 256 P.2d 215. SMITH, Justice.