This is an appeal from an order granting a motion for a new trial in favor of respondent (plaintiff) upon the ground, as stated in the order:
Respondent Roland Kuhn in his complaint alleged that on November 21, 1961, about 5:35 o'clock p. m., appellant (defendant) Monty A. Dell negligently drove and operated an automobile owned by appellant Edward Dell, with the latter's permission, on Idaho State Highway 45, in Canyon County; that the Dell automobile collided with the rear end of an automobile being carefully driven and operated by respondent Floyd D. Kuhn; that thereby the Kuhn vehicle sustained substantial damage for which respondent Roland Kuhn prayed judgment against appellants.
Appellants in their answer admitted that Monty A. Dell was driving the vehicle with Edward Dell's consent, and admitted the collision, but denied that they were negligent. They then counterclaimed seeking judgment against respondents, for damages sustained to the Dell automobile, alleging that the damages were caused by the negligence of the additional party, respondent Floyd D. Kuhn, who was operating the Kuhn vehicle with respondent Roland Kuhn's consent. Respondents by their reply and counterclaim denied negligence on their part.
At the conclusion of a jury trial the jury returned its verdict finding "for neither plaintiff or defendant," and the trial court entered judgment accordingly.
Thereupon respondents moved for a new trial, asserting that the trial court erred in failing to instruct the jury concerning the doctrine of last clear chance. Upon entry of the order granting the motion for a new trial on that ground, appellants perfected this appeal.
Appellants assign error committed by the trial court in granting the motion for a new trial, asserting that the trial court's refusal to give a jury instruction on last clear chance constituted a correct application of the law to the evidence. The issue thus raised is whether appellant Monty A. Dell had a last clear chance to avoid the accident under the evidence.
Where the trial court in granting a new trial expressly states the ground upon which the new trial was granted, the appellate court will determine on the appeal the issue of whether the particular ground justified the granting of the motion. Sanchotena v. Tower Co., 74 Idaho 541, 264 P.2d 1021 (1953); Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 52 Idaho 766, 22 P.2d 147 (1933).
In granting or refusing a motion for new trial, the trial court possesses wide discretion; the appellate court will not reverse the trial court unless it clearly appears that the court abused such discretion. Smith v. Big Lost River Irrigation District, 83 Idaho 374, 364 P.2d 146 (1961); State ex rel. Rich v. Sweet, 82 Idaho 191, 351 P.2d 230 (1960); Hall v. Bannock County, 81 Idaho 256, 340 P.2d 855 (1959); Stearns v. Graves, 62 Idaho 312, 111 P.2d 882 (1941); Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430 (1949); Applebaum v. Stanton, 47 Idaho 395, 276 P. 47 (1929).
In order to justify the giving of an instruction on the last clear chance doctrine,
The evidence to be considered in disposing of the issue relating to the last clear chance doctrine, shows that on November 21, 1961, about 5:30 o'clock p. m., respondent was driving his father's automobile northerly on a straight portion of Idaho State Highway 45 in Canyon County. After he had come over a rise or "hill" in the highway and was traveling down the slope, the automobile ran out of gasoline and the engine stopped running, whereupon respondent coasted the vehicle about one-fourth of a mile to a halt at his right-hand side of the highway, about one-half mile from the top of the rise or "hill." When the car stopped its two right wheels were off the paved highway but the remaining portion of the car, measuring six feet six inches in width, remained on the traveled portion of the highway. The highway was newly constructed. The shoulder bordering the highway was accessible and of sufficient width to park a car thereon. Respondent Floyd D. Kuhn testified that the shoulder of the highway appeared to be moist and unstable. Appellant Monty A. Dell testified that the shoulder was constructed of "basement dirt," i. e., gravel. Respondent attempted to start the car without avail. He testified that inasmuch as the sun had set his car lights were turned on and that he left them lighted; he then started to get out of the car, at which time it was struck in the rear by an automobile driven by appellant Monty A. Dell.
Appellant Monty A. Dell testified that he was driving his father's automobile, traveling north toward Nampa on Idaho State Highway 45 just prior to the collision. The car was in good condition, including its brakes. He had the headlights of the vehicle turned to low beam. He came over a rise or "hill" in the highway, and the highway then gradually sloped downward. As he started down the slope he noticed that the speedometer on the car showed he was traveling at the speed of 50 miles an hour, within the posted speed limit. He met two cars with bright lights just as he commenced traveling down the slope. He was driving in his own right-hand traffic lane. He then testified:
He further testified that when proceeding down the slope he first saw the Kuhn auto-tomobile when it was about 50 feet distant in front of him on the highway. It was then that he "tried to put on my brakes or to swerve but I hit him before I could do anything." The lights of the Kuhn car were not on but, according to Dell, its tail lights "looked just exactly like a reflection." The right front end of the Dell car collided with the rear of the Kuhn car.
The deputy sheriff called to the scene of the collision, testified that about 5:35 o'clock p. m., on November 21, 1961, he received a call concerning the collision and proceeded immediately to the scene of the accident. When he left the sheriff's office he did not have his car lights turned on. He testified concerning the necessity of having lights turned on:
The deputy sheriff stated that at the point of the impact the highway was 41 feet wide from pavement edge to pavement edge; that a center line was painted down the middle of the paved portion of the highway; that the left rear tire of the Kuhn vehicle at the time of impact was located on the pavement six feet six inches from the pavement edge, leaving fourteen feet of clearance between the Kuhn vehicle and the center of the highway, with twenty feet six inches of the highway on the opposite side of the center line. He did not recall whether respondent's lights were on at the time of the accident.
Appellant Edward Dell, owner of one of the vehicles, arrived at the scene of the collision about half an hour after it occurred. He testified that he noticed no lights on the Kuhn automobile at the time.
The issue, under the circumstances shown by the evidence, as it relates to the last clear chance doctrine, is whether appellant Monty A. Dell, upon becoming aware of the peril of respondent Floyd D. Kuhn, had sufficient opportunity to avert the collision and consequent damage to the Kuhn car.
The doctrine of last clear chance of necessity admits an avenue of escape from the consequences of the contributory negligence of the proponent of the doctrine. Rippetoe v. Feely, 20 Idaho 619, 119 P. 465 (1911); Ralph v. Union Pacific Railroad Company, 82 Idaho 240, 351 P.2d 464 (1960).
In Short v. Boise Valley Traction Co., 38 Idaho 593, 599, 225 P. 398, 399 (1924), the Court quoting from Locke v. Puget Sound International Ry. & Power Co., 100 Wn. 432, 171 P. 242, L.R.A.1918D, 1119 (1918), stated:
Additionally this Court in Cournyer v. Follett, 85 Idaho 119, 122, 376 P.2d 707, 708, 709 (1962), held:
In Lallatin v. Terry, 81 Idaho 238, 250, 340 P.2d 112, 120 (1959), the rule is stated:
In Hale v. Gunter, 82 Idaho 534, 538, 356 P.2d 223, 225 (1960), this Court upon considering time factors similar to those shown by the evidence in the case at bar, said:
In Laidlaw v. Barker, supra, the defendant Barker was driving his automobile at the rate of 55 miles per hour, when he first saw the Laidlaw boy about 50 feet distant, at approximately the center line of the highway. The boy was running across the highway into Barker's lane of traffic. Barker applied his brakes but nevertheless struck the boy who had continued crossing the highway to a point in front of Barker's car. Again this Court in considering the time factors said:
Hale v. Gunter, supra, points out that "at 50 miles per hour a driver with normal reaction would apply the brakes 50 feet after becoming aware of danger ahead." In the case at bar appellant Monty A. Dell, traveling at the rate of 50 to 55 miles an hour with normal reaction, would not have been able to apply the brakes until, in approximately seven-tenths of a second, he had traveled the 50 feet to the Kuhn car.
To make the doctrine of last clear chance applicable in the case at bar would require evidence to support a finding that appellant Monty A. Dell observed the position of the respondent Roland Kuhn's car in sufficient time to enable Dell by exercise of due care to avoid the collision. Absent
It is not sufficient that the evidence would support a finding that appellant Dell in the exercise of due care should have observed the Kuhn car sooner than he did because, if such failure on Dell's part was a proximate cause, or contributing proximate cause, of the collision, he would be subjected to liability by application of the law of negligence for his failure so to observe. Under such state of facts any attempted application of the doctrine of last clear chance on the ground that appellant Dell should have sooner observed the Kuhn car, would be repetitious of the law of negligence under the guise of last clear chance.
Here the record does not show or tend to show that respondent Monty A. Dell discovered the Kuhn car in time to have avoided the collision.
It is reversible error to instruct the jury on the doctrine of last clear chance where there is no substantial evidence to support the doctrine. Graham v. Milsap, supra; Cournyer v. Follett, 85 Idaho 119, 376 P.2d 707 (1962); Hale v. Gunter, 82 Idaho 534, 356 P.2d 223 (1960); Ralph v. Union Pacific Railroad Company, 82 Idaho 240, 351 P.2d 464 (1960); Laidlaw v. Barker, 78 Idaho 67, 297 P.2d 287 (1956).
The order of the trial court granting respondents' motion for a new trial is reversed, and the cause is remanded with instructions to reinstate the jury's verdict.
Costs to appellants.
McQUADE, C. J., concurs.
I concur in the opinion by SMITH, J.
On the basis of the testimony of Floyd Kuhn, alone, the stopping and permitting of the Kuhn car to stand upon the traveled portion of the highway was in violation of I.C. § 49-755. That section provides:
During the course of the last quarter of a mile of its travel, while it was coasting downhill, it could have been guided off the traveled portion of the highway and onto the shoulder, out of the way of oncoming traffic. Even after it had stopped, since it was facing downhill, its driver presumably could have pushed it off the traveled portion of the highway. The shoulder was shown to be one sloping gently outward a distance of fifteen feet. The fact that it may have been wet, could not justify the driver in leaving the car on the traveled area where it constituted a menace to other drivers lawfully using the highway. The record conclusively shows that it was not disabled to such extent that it was "impossible to avoid stopping" and leaving it upon the traveled portion of the highway. The statute contemplates that where the choice is between the necessity of pulling a car back on the highway with a wrecker, or leaving it in a position such as to endanger not only the life of its driver, but others lawfully using the highway, the driver must choose the way of safety. The use of the word "impossible" in the statute negatives the idea that a driver may consult his own convenience in deciding whether
Young Kuhn's negligence in leaving the car on the highway did not result in a static or passive situation. Since the car could have been moved off the roadway, his negligence in not so moving it and in permitting it to stand on the traveled portion was continuing and active negligence and remained of such character up to the time of the collision.
By the Kuhn complaint, Dell, the driver of the other car, was charged with negligence in failing to see the Kuhn car in time, and with failing to so operate the Dell car as to avoid the collision. The issues of negligence on the part of Dell and the contributory negligence of Kuhn were submitted to the jury and were determined by its verdict against Kuhn and in favor of Dell. To require the trial court to instruct the jury that it should also determine whether or not the driver Bell was negligent in failing to see the Kuhn car in time to avoid the collision, and, if so, to hold him solely responsible for the accident, without any evidence that he actually saw the Kuhn car and became aware of its presence on the traveled portion of the highway in time to avoid the collision, is equivalent to instructing the jurors that they must find for the plaintiff regardless of his contributory negligence if they find ordinary negligence on the part of defendant. In this case the hour was late afternoon, dusk; drivers on the highway were using their lights; the reflection of the lights from the city of Nampa could be seen from the hilltop; there had been a light rain; there was at the time a drizzle and the atmosphere was misty; and the Dell car was being operated in a lawful manner and within the posted speed limit. To apply the doctrine of last clear chance against Dell under such circumstances is equivalent to assuming that he did see the Kuhn car in time to have avoided it. In my opinion the failure to give an instruction on the last clear chance in favor of the plaintiff was not error.
McFADDEN, Justice (dissenting).
It is necessary to point out that by their answer, the appellants, Edward and Monty A. Dell, not only denied negligence on the part of Monty A. Dell, the driver of the Dell vehicle, but further interposed as an affirmative defense to the complaint, that:
Thus the issue of contributory negligence on the part of respondent Floyd E. Kuhn was presented by the pleadings.
The majority opinion holds that the doctrine of last clear chance is not applicable unless the defendant actually has observed the plaintiff's perilous situation in sufficient time to act so as to avoid an accident. Furthermore, such majority opinion states:
The purpose of the doctrine of last clear chance is to allow a plaintiff in a proper case to recover for his injuries despite the fact that he has negligently exposed himself to the danger.
The Supreme Court of Washington in the leading case of Mosso v. E. H. Stanton Co., 75 Wn. 220, 134 P. 941, L.R.A.1916A, 943 (1913), dealing with the last clear chance doctrine established a formula for determining the applicability of the doctrine, as follows:
The second part of the Washington formula is strictly limited to those situations where the plaintiff's negligence has culminated or terminated in a position of peril from which he could not, by the exercise of reasonable care, extricate himself. Everest v. Riecken, 30 Wn.2d 683, 193 P.2d 353 (Wash.1948); Thompson v. Porter, 21 Wn.2d 449, 151 P.2d 433 (Wash.1944).
The Restatement of the Law of Torts recognizes the application of the last clear chance doctrine where the defendant is under a duty to exercise vigilance though he did not know of the plaintiff's perilous situation. Restatement of Law of Torts § 479 provides:
In discussing the applicability of the doctrine of last clear chance, the annotators of A.L.R. (92 A.L.R. 47; 119 A.L.R. 1041; 171 A.L.R. 365), have divided the factual situation of decided cases into four categories:
Application of the doctrine of the last clear chance cases falling within the third category necessarily require that there be upon the defendant a duty to observe; a breach of that duty; and an injury to a plaintiff whose antecedent negligence has left him in a state of peril from which he cannot extricate himself.
The case at hand falls within the third category, as the record indicates that the respondent Roland A. Kuhn was unable to move his car off the road because it was out of gas and would not start. In Drury v. Palmer, 84 Idaho 558, 375 P.2d 125, this court stated:
In discussing the cases, which if taken at face value, would deny application of the doctrine of last clear chance, the A.L.R. Annotation at 92 A.L.R. 111 said:
An examination of the Idaho cases on this subject discloses that the last clear chance doctrine has been held inapplicable
On the other hand, this court has applied the doctrine of the last clear chance to situations in which the plaintiff's active contributory negligence, while continuing up to the time of the accident, did not create an emergency situation, for the defendant was aware of the circumstances. Evans v. Davidson, 57 Idaho 548, 67 P.2d 83; Bryant v. Hill, 45 Idaho 662, 264 P. 869; Geist v. Moore, 58 Idaho 149, 70 P.2d 403; Short v. Boise Valley Traction Co., 38 Idaho 593, 225 P. 398; Denbeigh v. Oregon-Washington Etc. Co., 23 Idaho 663, 132 P. 112; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91; Pilmer v. Boise Traction Co., Ltd., 14 Idaho 327, 94 P. 432, 15 L.R.A.,N.S., 254. Also where the plaintiff's negligence has placed him in a position of peril, and the defendant saw or should have seen the plaintiff in his perilous situation: Jack v. Fillmore, 85 Idaho 36, 375 P.2d 321; Stearns v. Graves, 62 Idaho 312, 111 P.2d 882; Asumendi v. Ferguson, 57 Idaho 450, 65 P.2d 713; Branson v. Northern Pacific Ry. Co., 55 Idaho 220, 41 P.2d 629; York v. Alho, 52 Idaho 528, 16 P.2d 980; See also: Hooker v. Schuler, 45 Idaho 83, 260 P. 1027, and Durrington v. Crooker, 78 Idaho 539, 307 P.2d 227.
In the Durrington case, the defendant and cross-complainant's requested instruction on the last clear chance doctrine was given. After an adverse judgment on his cross-complaint, defendant appealed contending the trial court erred in not granting his motion for non-suit and for a new trial, contending the evidence clearly indicated the plaintiff had the last clear chance to avoid the accident. In answer to this contention the court stated:
The majority opinion quoted from Short v. Boise Valley Traction Co., supra, Cournyer v. Follett, supra, Lallatin v. Terry, supra, and Hale v. Gunter, supra, in support of the proposition that the last clear chance doctrine is not applicable unless the defendant actually saw the plaintiff in a state of peril. A careful examination of these cases discloses that the injured parties were actively contributorily negligent up to the time of the accident, and in view of the concurring negligence the defendant could not have had the "last clear chance" to have avoided the accident.
In Jack v. Fillmore, supra, plaintiff Jack was struck by a car driven by defendant Fillmore, while attempting to cross a road on foot. The road was straight and 46 feet wide at the place of impact and Mrs.
In Branson v. Northern Pacific Ry., supra, the deceased was driving a truck pulling a hay rake along a private road which crossed defendant's tracks at a private crossing. When deceased attempted to cross the tracks one of the wheels of the hay rake caught on a motor-cart which the defendant's employees had left at the crossing. He was struck by one of the defendant's locomotives when he stopped to examine the situation. There this court said:
In York v. Alho, supra, plaintiff-appellant lost control of his car on an icy road and travelled in an uncontrolled manner for about 150 to 200 feet, before colliding with a truck driven by defendant's servant. The record indicated that when appellant's car began its skid defendant's truck was about 500 to 600 feet away. There this court said:
The cases in which this court has spoken in terms of actual knowledge by the defendant of the plaintiff's peril being a prerequisite to the application of the doctrine, factually are not inconsistent with the cases decided by this court which speak in terms of the defendant's awareness of the plaintiff's peril or duty to be aware of such peril. Those cases which speak in terms of defendant's actual knowledge, did not involve a factual situation where the plaintiff was in a position of peril because of his passive negligence, as in the case at hand.
The majority opinion accepts Dell's testimony that he did not have sufficient time in which to avoid colliding with the Kuhn car. A similar contention was made in the case of Stearns v. Graves, 62 Idaho 312, 111 P.2d 882, where this court stated at page 323 of 62 Idaho, at page 886 of 111 P.2d:
It is my conclusion that as concerns the doctrine of the last clear chance, this court has committed itself to the application of the doctrine not only to those cases where the defendant actually was aware of the
The purpose of the humanitarian doctrine of the last clear chance is to allow a plaintiff in a proper case to recover for his injuries despite the fact that he has negligently exposed himself to the danger causing his injuries. In such a case to allow any recovery, the jury would first have to find negligence on the part of the defendant, otherwise there would be no recovery. If such jury did find negligence on the part of the defendant and no contributory negligence on the part of the plaintiff, the jury would have to find for the plaintiff. Only when the jury finds negligence on the part of the defendant and also contributory negligence on the part of the plaintiff does the doctrine become applicable.
The majority opinion reasons that the doctrine can only be applied where the negligent defendant actually saw or was aware of the plaintiff's peril; that the doctrine cannot be applied to a situation where the defendant while not actually seeing or being aware of the plaintiff's peril should have seen or been aware of it, because under such latter situation, the negligence causing the injury would be the failure to see or observe the plaintiff's peril. While that may be true, where the issue of contributory negligence has been interjected by the defendant's answer, which if supported by the facts no recovery could be had, it takes from the jury the opportunity to pass on the issue of the plaintiff's contributory negligence.
The function of a jury is to resolve issues of fact. An instruction on this rather anomalous doctrine gives a criterion to the jury to assist in the evaluation of the evidence presented and the application of other instructions dealing with negligence, contributory negligence, and proximate cause.
The plaintiffs' motion for new trial was based on the grounds of insufficiency of the evidence to sustain the verdict, and failure to instruct the jury concerning the doctrine of last clear chance. The trial court in ruling on this motion stated in its order:
Briefly reiterating the facts before the court at that time, the Kuhn car stopped approximately a quarter of a mile below the top of a slope in the highway, with its two right wheels off the paved portion of the roadway, and about six and a half feet onto the paved roadway. The Dell car struck the rear of the Kuhn car about 5:30 P.M., November 21, 1961. A conflict appears whether lights were necessary or not, and also whether the lights of the Kuhn vehicle were on. The Kuhn vehicle had ran out of gasoline and wouldn't start. Floyd Kuhn, the driver, rather than getting completely off the travelled portion of the highway testified that the shoulder of the highway looked soft. At the place where the accident occurred, the paved roadway was 41 feet in width with a center line down the middle, leaving fourteen feet of the right hand lane open to pass, and 34 feet of the whole highway. Appellant Monty A. Dell testified that he was looking straight ahead when he came over the crest of the hill behind the Kuhn vehicle, and that he did not see the Kuhn car until it was too late to avoid the accident.
In ruling on the motion the trial court had to resolve the problem whether the verdict signed by only nine of the jurors was properly rendered. The order granting the new trial reflects that the court not only evaluated the law applicable, but
The granting or denial of a new trial will be reviewed only for manifest error or abuse of discretion. Walsh v. Winston Bros. Co., 18 Idaho 768, 111 P. 1090; Say v. Hodgin, 20 Idaho 64, 116 P. 410; Baillie v. City of Wallace, 22 Idaho 702, 127 P. 908; McAllister v. Bardsley, 37 Idaho 220, 215 P. 852; Stone v. Matthies, 49 Idaho 277, 287 P. 951; Stearns v. Graves, 62 Idaho 312, 111 P.2d 882; Poston v. Hollar, 64 Idaho 322, 132 P.2d 142; Smith v. Big Lost River Irrigation District, 83 Idaho 374, 364 P.2d 146.
In MacDonald v. Ogan, 61 Idaho 553, 556, 104 P.2d 1106, 1107, this court stated:
One further facet of this case merits scrutiny by this court. The trial court gave an instruction on the "sudden emergency" doctrine. In giving such an instruction the trial court must have believed there were facts in the record justifying such an instruction. However, on the motion for new trial, he found facts in the record which in his discretion were sufficient to justify the giving of an instruction of the doctrine of last clear chance, after he had first denied the plaintiff's request for such an instruction. This, in my mind, indicates that the trial court had misgivings as to the correctness of his earlier determination of the applicability of the "sudden emergency" doctrine. Under any view of the "last clear chance" doctrine, if the facts would justify giving of that instruction, certainly that would eliminate from consideration the application of the doctrine of sudden emergency.
It is my conclusion that the trial court was doing substantial justice in granting the motion for new trial, and no abuse of its discretion appearing, the trial court's order should be sustained.
KNUDSON, J., concurs with this dissenting opinion.