PORTER, Chief Justice.
By this action, appellants seek to recover for damages to the automobile of appellant Bell resulting from a collision with an automobile driven by respondent, William Carlson, and owned by his father, respondent,
Among other assignments of error, appellants urge the trial court erred in instructing the jury on the law of contributory negligence and in submitting such issue to the jury, on the ground that the evidence was insufficient to justify the court's action. To properly pass upon such assignment of error, it is necessary to consider the evidence in some detail.
There were only three witnesses who testified at the trial. Appellant Bell and L. D. Allred, the investigating officer, testified for appellants. Respondent, William Carlson, testified for respondents.
The collision occurred on May 16, 1949, at about the hour of noon in the City of Preston. In such city there is an intersection of two streets, to-wit: First North Street, running east and west, and First East Street, running north and south. The streets at such intersection are each 100 feet wide from property line to property line. The home of appellant Bell was located some three-quarters of a block east of such intersection. About noon on the day in question, Dr. Bell left his home and drove his 1937 Chevrolet automobile in a westerly direction along his right-hand side of First North Street. At the same time, William Carlson was driving the Carlson car south on First East Street. As to what happened at the intersection, Dr. Bell testified as follows:
The car of Dr. Bell was struck on the right side on the right front fender. Dr. Bell heard respondent, William Carlson, tell the investigating officer that he was doing about 40 miles an hour.
Under cross-examination, Dr. Bell testified:
The witness, L. D. Allred, testified that he was a patrolman on the police force at the time in question. That he was called and arrived at the scene of the accident a few minutes after it occurred. He there talked to respondent, William Carlson, who said the Carlson car was traveling probably 35 or 40 miles an hour. He testified:
Respondent, William Carlson, called as a witness on behalf of respondents, testified he was sixteen years old at the time of the accident. That he had taken a friend home and was returning south on First East Street when the collision occurred. The gist of his testimony was as follows:
From the evidence, the negligence of William Carlson is apparent; and such negligence was the proximate cause of the accident. Respondents do not seriously contend to the contrary. Respondents attempt to avoid liability for such negligence on the ground that Dr. Bell was guilty of contributory negligence which proximately contributed to the collision and to the damage of his car. The burden of proof of the affirmative defense of contributory negligence is upon the party pleading such defense, unless it appears from the evidence introduced by plaintiff. Section 5-816, I.C.; Bryant v. Hill, 45 Idaho 662, 264 P. 869; Kelly v. Troy Laundry Co., 46 Idaho 214, 267 P. 222; Tendoy v. West, 51 Idaho 679, 9 P.2d 1026; Willi v. Schaefer Hitchcock Co., 53 Idaho 367, 25 P.2d 167; Madron v. McCoy, 63 Idaho 703, 126 P.2d 566; Pearson v. City of Weiser, 69 Idaho 253, 206 P.2d 264.
Also, the burden of proof is upon the defendant to show that the negligence of plaintiff, if established, was a proximate contributing cause to the injury unless the proof on behalf of plaintiff establishes it or shows facts clearly presumptive of it. Kelly v. Troy Laundry Co., supra; Madron v. McCoy, supra; Tendoy v. West, supra; Pittman v. Sather, 68 Idaho 29, 188 P.2d 600; Pearson v. City of Weiser, supra; Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430.
The mere fact of a violation of a law of the road is not contributory negligence barring recovery unless such negligence constitutes a proximate contributing cause to the injury.
In Kelly v. Troy Laundry Co., supra [46 Idaho 214, 267 P. 225], the court was considering the absence of a light on the front of a bicycle and quoted with approval from George v. McManus, 27 Cal.App. 414, 150 P. 73, as follows:
In Tendoy v. West, supra, this court, in considering the absence of a taillight on a buggy in violation of statute, held that in the absence of some probable causal connection, bald negligence per se can raise no presumption of proximate cause and unless such negligence contributes to the result, it is not contributory negligence.
In Maier v. Minidoka County Motor Co., 61 Idaho 642, 105 P.2d 1076, a bicycle was traveling on the highway at night without a lighted headlamp and this court held that in order for such negligence to bar recovery it was required to be a proximate and contributing cause of the injury.
Also, this court has held that the charge of contributory negligence must be sustained by substantial evidence in the record. Madron v. McCoy, supra.
Contributory negligence is generally a question of fact for the jury, but becomes a question of law for the court when established facts and circumstances permit only one possible conclusion to be drawn by a reasonably prudent man. In Dale v. Jaeger, 44 Idaho 576, at page 581, 258 P. 1081, at page 1082, this court said:
The affirmative defense of contributory negligence was pleaded in general terms and no specific act of negligence was set
There is some suggestion in the brief of respondents that they contend it was contributory negligence on the part of Dr. Bell to fail to yield the right of way as the Carlson car was on his right. Under the undisputed evidence the automobile driven by Dr. Bell entered the intersection first and before the Carlson car approached it, and had the right of way. 136 A.L.R. 1497. In Cowan v. Market St. Ry. Co., 8 Cal.App.2d 642, 47 P.2d 752, on page 754, the court said:
Furthermore, at the time of the accident, the Carlson car was admittedly traveling at an unlawful speed and under Section 49-520, I.C., in force at that time, its driver thereby forfeited any right of way he might otherwise have had. Stallinger v. Johnson, 65 Idaho 101, 139 P.2d 460.
The main contention, however, of respondents is that appellant Bell was traveling at an unlawful rate of speed which constituted negligence contributing to the injury. Section 49-504, I.C., in force at the time of the accident, provides that it is prima facie lawful to drive a vehicle at a speed not exceeding "Fifteen miles an hour when approaching within fifty feet and in traversing an intersection of highways when the driver's view is obstructed. A driver's view shall be deemed to be obstructed when at any time during the last fifty feet of his approach to such intersection, he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet of such intersection; * *".
The evidence is not convincing that the view of Dr. Bell was obstructed as he approached the intersection within the meaning of the foregoing statute. In any event, the uncontradicted evidence of Dr. Bell both upon direct and cross-examination was that he was going 15 miles an hour. He admitted the possibility that he might have been traveling a trifle faster than 15 miles an hour. This testimony is far from substantial evidence that Dr. Bell was violating the speed law or traveling at a prima facie unlawful speed. Furthermore, if it be assumed that Dr. Bell was traveling a trifle over 15 miles an hour, there is nothing in the evidence from which it might be said that such trifling excess speed proximately caused or contributed to the injury.
Bearing in mind that the burden of proof was upon respondents to prove contributory negligence which proximately caused or contributed to the injury, we are unable to find in the record either direct or circumstantial evidence appearing in the proof offered by appellants or by respondents sufficient to establish contributory negligence on the part of Dr. Bell. We must conclude that the charge of contributory negligence is not sustained by substantial evidence in the record and that the trial court committed
In view of the foregoing determination which will require the reversal of the judgment, we do not deem it necessary to consider or discuss the other assignments of error set out by appellants as such assignments concern matters which are not likely to be issues upon a new trial.
The judgment of the trial court is reversed and the cause remanded with direction to grant a new trial. Costs to appellants.
TAYLOR, THOMAS and KEETON, JJ., concur.
GIVENS, J., concurs in the conclusion.