ANDERSON, Justice.
Respondents brought this action to recover damages for the death of Blanche L. Graham, who was killed in a collision between their Plymouth sedan and the truck of appellant on December 29, 1952, on U. S. Highway 95 approximately two miles south of Craigmont, Idaho. Blanche, the wife of respondent Chester and the mother of the other respondents, was driving toward Craigmont, going around a curve, when respondents' car collided with appellant's logging truck, which was being driven by his admitted agent and employee, Stanley F. Bledsoe, in the opposite direction. The parents and the older child, then age three, were riding in the front seat, and
Much of the evidence is very conflicting, especially as to who was on the wrong side of the road, where the debris and tire marks were, and the position of the car and the truck at the time of the collision, each party claiming the other's driver was on the wrong side of the road. Respondent Chester Graham testified that he was sitting on the right-hand side of his car and observed shortly before the collision that his car nearly went off the right edge of the oiled pavement. Appellant offered evidence that Graham had stated that he was asleep at the time of the collision, and Graham admitted on cross-examination he might have been asleep prior to the accident. Appellant's driver testified he had an unobstructed view of the entire sequence of events prior to the accident, and that his truck was over on his own side of the road far enough to have his right outside dual tires on the shoulder of the road, and that he saw nothing unusual in the approach of the Plymouth sedan until it was within 20 to 25 feet of the truck, when it crossed the center line. At the place of the collision the highway was 20 feet in width on the hard oiled surface, and had shoulders on both sides beyond the oil of three to five feet in width. The Plymouth and the truck were each going between 35 and 40 miles per hour at the time they collided. The complaint alleges negligence of appellant's driver and lack of negligence on the part of the driver of the Plymouth. The answer of appellant alleges that the driver of the Plymouth was negligent, and that her negligence was the proximate cause of the accident and her death.
The case was tried to a jury, and, after denial of appellant's motion for a non-suit, jury returned a verdict for the respondents. Motions were made by appellant for a new trial and for judgment notwithstanding the verdict. These were denied by the trial court. This appeal was then perfected.
Appellant assigns as error the refusal of the trial court to grant his motion for non-suit and the denial of his motion for a new trial and motion for judgment notwithstanding the verdict, claiming that the evidence was not sufficient to sustain a verdict. As pointed out in the statement of facts above, the evidence is conflicting. A review of the transcript of the testimony discloses that there is sufficient substantial evidence, if believed by the jury, to sustain a verdict for the respondents. This court has several times stated:
The supreme court is not the trier of the facts, and is committed to the rule it will pass on a question of negligence only in clear cases, where the question of negligence is free from doubt. O'Connor v. Meyer, 66 Idaho 15, 23, 154 P.2d 174.
Appellant assigns as error the fact that the court instructed on the last clear chance doctrine and submitted that question to the jury. Appellant contends that this question was not involved because respondents did not admit contributory negligence, and for the further reason that there was no evidence to justify such an instruction. Respondents, on the other hand, contend that appellants, by their answer, injected contributory negligence and the doctrine of last clear chance into the case, and cite Hooker v. Schuler, 45 Idaho 83, 89, 260 P. 1027, 1028, wherein this court said:
The case of McKinley v. Wagner, 67 Idaho 104, 111, 170 P.2d 796, 799, cited by respondents, states:
We are of the opinion that under the pleadings now before us the last clear chance doctrine could be an issue in the case if there were substantial evidence to support it. In this case there was no such evidence. McIntire v. Oregon Short Line R. Co., 56 Idaho 392, 55 P.2d 148; Ineas v. Union Pacific R. Co., 72 Idaho 390, 241 P.2d 1178. The last clear chance rule is clearly stated in 38 Am.Jur., Negligence, sec. 219, p. 905, as follows:
In Ineas v. Union Pacific R. Co., 72 Idaho 390, 241 P.2d 1178, plaintiffs sought to recover for death of a truck passenger in a railroad crossing accident. Witnesses estimated speed of the train at from 30 to 55 miles per hour. The railroad fireman testified the train was approximately 100 feet from the point of collision when it became apparent the truck driver was going to continue across the tracks. In sustaining judgment for defendants, the court held, 72 Idaho at page 404, 241 P.2d at page 1188:
In McIntire v. Oregon Short Line R. Co., 56 Idaho 392, 55 P.2d 148, the plaintiff sought to recover for injuries he suffered when his car was struck by a train at a crossing. The brakeman testified he saw the plaintiff's peril when the train was 50 to 60 feet from the crossing, and called to the engineer to stop the train. The court noted, 56 Idaho at page 401, 55 P.2d at page 152:
The court held it was error to instruct on last clear chance, and reversed the judgment for the plaintiff, saying, 56 Idaho at pages 396-397, 55 P.2d at page 149:
The cases of McKinley v. Wagner, supra, and Evans v. Davidson, 58 Idaho 600, 614-615, 77 P.2d 661, wherein they held the issue of last clear chance was for the jury, are distinguishable as to the time element. In the McKinley case the plaintiff signaled a left turn 100 to 150 feet before he made the turn and collided with defendant's truck, which was then attempting to pass on his left, both cars going the same direction; and in the Evans case, plaintiff's car turned into defendant's line of traffic while the two cars were 75 to 100 yards apart and coming toward each other at speeds estimated at from 35 to 65 miles per hour, while in the present case the cars were only 12 to 25 feet apart and coming toward each other, each at a speed of 35 to 40 miles per hour, and there was no last clear chance to avoid the accident. Where the act which creates the peril occurs at practically the same time as that of the accident, it cannot be fairly said that either party had a last clear chance thereafter to avoid the consequences. Allin v. Snavely, 100 Cal.App.2d 411, 224 P.2d 113, 116.
In the case of McIntire v. Oregon Short Line R. Co., 56 Idaho 392, 398, 55 P.2d 148, 150, this court quoted with approval the following:
An instruction on the last clear chance doctrine should not have been presented to the jury, even though the complaint alleges negligence of the appellant, and the answer denies it and alleges the accident was caused by the negligence of the deceased, there being no evidence to support such doctrine. The respondents invoked the last clear chance doctrine and submitted a requested instruction thereon, and the court announced to counsel that an instruction would be given on the subject. Appellants thereafter submitted a requested instruction which began:
The doctrine was then tersely stated, and it was further stated that the plaintiff who invokes the doctrine has the burden of proving that his case comes within it. Under
Appellant further assigns as error the court's refusing to give his requested instruction no. 12, which reads:
Respondents contend that instructions nos. 10 and 11 given by the court covered this requested instruction. Although this instruction was partly covered by the court's instructions, and refusal to give appellant's requested instruction no. 12 standing alone may not constitute reversible error, nevertheless it should have been given. Hooten v. City of Burley, 70 Idaho 369, 375(3), 219 P.2d 651.
The appellant assigns error in the court's refusing to give his requested instruction no. 43. It reads:
He cites in support of his contention Ineas v. Union Pacific R. Co., 72 Idaho 390, 241 P.2d 1178. At page 405 of 72 Idaho 241 P.2d 1188, the court stated that there was positive evidence which conclusively contradicted the presumption of due care and caution which applied to the person killed, and by thus showing the person had not exercised such due care and caution, it not only overcame the presumption, but prevented recovery by the deceased's representatives.
The court did not state that it was necessary to have positive evidence which conclusively contradicted the presumption. All that is necessary is that the presumption be overcome by a preponderance of the evidence in a negligence action. Calkins v. Blackwell Lumber Co., 23 Idaho 128, 129 P. 435. Whether this has been done or not is a question for the jury to decide. A party is not entitled to an instruction that does not correctly state the law, even if he could not have complained of error, had the court given it, because it was less favorable to him than he was entitled to under the law. In Carpenter v. McKissick, 37 Idaho 729, 733, 217 P. 1025, 1026, this court stated:
The trial court did not err in refusing appellant's requested instruction no. 43. Instructions on presumptions of due care on the part of a decedent are not favored, and the tendency is to refrain from giving them, especially where there are eye witnesses. Koch v. Elkins, 71 Idaho 50, 55, 56, 225 P.2d 457.
Our decision herein makes it unnecessary to consider the other assigned errors.
The judgment is reversed and the cause remanded for a new trial. Costs to appellant.
TAYLOR, C. J., and KEETON, PORTER, and SMITH, JJ., concur.
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