Petersen v. Parry

SMITH, Chief Justice,

with whom McFADDEN, Justice, concurs (dissenting) :

The accident out of which this action arose occurred during daylight and clear weather, on a straight, dry, level, two-lane paved highway, the paved portion of which was 38 feet wide,- — amply sufficient to permit the simultaneous passage of two automobiles, with no sight impediments at or near the scene of the accident.

The Owen G. Johnson automobile proceeding northerly, left no skid marks. The Brent T. Johnson vehicle proceeding southerly left skid marks extending the last 26 feet to the place of impact of the vehicles. At the start of the skid marks Brent T. Johnson’s vehicle was wholly to the driver’s right of the distinctly marked center line of the highway. The collision appeared to have occurred at the center of the highway with a portion of the front end of each vehicle on the driver’s left hand *660side of the highway center line. There was no evidence of excessive speed on the part of either driver, although from the extensive damage to the vehicles, it appeared that both were proceeding at or near the posted speed limit of 60 miles an hour. The occupants of both vehicles died either immediately or without regaining consciousness.

At the close of appellants’ evidence, each respondent presented a motion for involuntary dismissal. The trial court granted both motions and entered orders of dismissal on grounds that appellants’ evidence and the facts proven thereby, when considered most favorably to appellants, were equally consistent with the non-liability, as with the liability, of appellants, i. e., with the absence of ordinary negligence on the part of Brent T. Johnson, and of gross negligence on the part of Owen G. Johnson, as with the existence of such negligence. The court also ruled as a matter ■ of law that the decedent minor, Curtis T. Petersen, at the time of the collision, was a guest in Owen Johnson’s automobile within the meaning of the motor vehicle guest statute, I.C. § 49-1401.

In ruling on a motion for involuntary dismissal under I.R.C.P. 41(b),1 the following standard has been adopted:

“A motion for a nonsuit2 presents a question of law, as to whether the evidence, viewed in the light most favorable to the plaintiff, with all the reasonable inferences properly deducible therefrom, presents a prima facie case entitling the plaintiff to have the issues submitted to the jury. [Citations] If the evidence establishes a prima facie case and the motion is nevertheless granted, the decision is against the law.” Julien v. Barker, 75 Idaho 413, 272 P.2d 718 (1954). See also Carson v. Bye, 79 Idaho 495, 321 P.2d 604 (1958); Whitt v. Jarnagin, 91 Idaho 181, 418 P.2d 278 (1966).
“Where there is substantial competent evidence tending to establish plaintiff’s case, or where reasonable minds may differ as to the conclusion to be reached therefrom, the cause should be submitted to the jury.” Bancroft v. Smith, 80 Idaho 63, 323 P.2d 879 (1958). Cf. Sturgis v. Garrett, 85 Idaho 364, 379 P.2d 658 (1963).

The only competent evidence on the issue of negligence is the fact that each vehicle was partially over the center line of the highway at the point of impact. No oral testimony was or could be adduced in explanation thereof, and the physical evidence was insufficient to provide an explanation. Therefore, in the absence of evidence to the contrary, both Brent T. Johnson and Owen G. Johnson, when their vehicles collided, appear to have been in violation of the positive inhibition of I.C. § 49-708 ;3 that inhibition mandatorily re*661quires that a vehicle be driven upon the driver’s right half of the roadway, except in the explicitly stated instances not pertinent here.

“This court has frequently held that for one to violate a positive statutory inhibition is negligence per se, and not merely prima facie evidence of negligence.” Brixey v. Craig, 49 Idaho 319, 288 P. 152 (1930).

See also State ex rel. McKinney v. Richardson, 76 Idaho 9, 277 P.2d 272 (1954); Ineas v. Union Pac. R. Co., 72 Idaho 390, 241 P.2d 1178 (1952); Bale v. Perryman, 85 Idaho 435, 380 P.2d 501 (1963); Lundy v. Hazen, 90 Idaho 323, 411 P.2d 768 (1966); Werth v. Tromberg, 90 Idaho 204, 409 P.2d 421 (1965); Chard v. Bowen, 91 Idaho 521, 427 P.2d 568 (1967); 65 C.J.S. Negligence § 19(3), p. 623 (1966). There is only one exception to the general rule, as stated in Howard v. Missman, 81 Idaho 82, 87, 337 P.2d 592, 594, in harmony with State ex rel. McKinney v. Richardson, supra, as follows:

“ ‘To prove that a violation of a statute was excusable and justifiable so as to overcome the presumption of negligence, the evidence must support a finding that the violation resulted from causes or things beyond the control of the person charged with the violation.’ ”

See also Chard v. Bowen, supra.

Here, the “excusable and justifiable” exception will not apply without some positive evidence to that effect. As to the Owen G. Johnson vehicle there is no such evidence. Nor is there any such evidence as to the Brent T. Johnson automobile; the investigating officer stated that in his ■opinion the 26 feet of kid marks left by that vehicle did not furnish a sufficient basis for determination of the circumstance (i. e., the causative factors) of the accident. Absent any further evidence in the premises both drivers were guilty of negligence per se.

Respondents, and the majority opinion, rely upon the cases of Splinter v. City of Nampa, 74 Idaho 1, 256 P.2d 215 (1953) and Dent v. Hardware Mutual Casualty Co., 86 Idaho 427, 388 P.2d 89 (1963), for the proposition that a verdict cannot rest upon conjecture. In the former case, butane gas had exploded in a restaurant, and the question before the court was the location of a gas leak. If the leak had been in the basement, the inference would have been justified that it was caused by faulty positioning of the butane tank. This would have made the city liable, since its engineer had approved the position of the tank. On the other hand, if the leak occurred in the kitchen, no such liability would attain. This Court upheld the district court’s judgment non obstante veredicto for defendant on the following premise:

“The underlying principle applicable here is that a verdict cannot rest on conjecture; that where a party seeks to establish a liability by circumstantial evidence, he must establish circumstances of such nature and so related to each other that his theory of liability is the more reasonable conclusion to be drawn therefrom; and that where the proven facts are equally consistent with the absence, as with the existence, of negligence on the part of defendant, the plaintiff has not carried the burden of proof and cannot recover. [Citations]” 74 Idaho 11, 256 P.2d 221.

In Dent v. Hardware Mutual Casualty Co., supra, the deceased Williams, while driving, collided with a bridge abutment, and died shortly thereafter. Subsequent examination revealed that he died of a cerebral hemorrhage. The question for *662determination was whether a preexisting condition of arteriosclerosis had provoked the hemorrhage, or whether a head injury-received in the accident had caused the hemorrhage. In short, did the hemorrhage cause the accident (for which there would be no recovery under an accident insurance policy) or did the accident cause the hemorrhage? The evidence equally supported each alternative. This Court, citing Splinter v. City of Nampa, supra, reversed a finding for plaintiff and directed the trial court to dismiss the action.

Respondents argue that there is a presumption of due care on the part of the decedents, based in the urge of self preservation, which must be weighed in determining the question of negligence. In its majority opinion, this Court applies the presumption to each decedent automobile driver.

Where there is no direct evidence as to how or why a death may have occurred the presumption of due care arises and procedurally creates “a prima facie case of due care upon the part of the person killed.” Haman v. Prudential Insurance Co. of America, 91 Idaho 19, 415 P.2d 305 (1966); Adams v. Bunker Hill Mining Co., 12 Idaho 637, 89 P. 624 (1906).

“Where there is a conflict between the presumption [of due care] and contrary evidence, from which reasonable minds might draw different conclusions, it is proper ’to instruct the' jury as' to the presumption.” Geist v. Moore, 58 Idaho 149, 70 P.2d 403 (1937); see also Haman v. Prudential Insurance Co. of America, supra; Department of Finance of State v. Union Pacific Railway Co., 61 Idaho 484, 104 P.2d 1110 (1940).

'We then have before us' evidence from which the'presumption arises that both decedent drivers were negligent per se; also evidence creating the prima facie presumption of due care, on the part of both drivers.

The rule -that a verdict cannot rest upon conjecture, is not applicable in the case at bar because appellants are afforded the benefit of the presumption of negligence per se, which, in the absence of evidence in excuse or justification of the ostensible violation of a statute, removes the case from one based upon conjectural evidence.

The general rule is that where “conflicting presumptions” are present, the jury should consider them. Scott v. Burke, 39 Cal.2d 388, 247 P.2d 313 (1952); Erandjian v. Interstate Bakery Corp., 153 Cal.App.2d 590, 315 P.2d 19 (1957); People By and Through Dept. of Public Works v. J. P. Loubet Co., 147 Cal.App.2d 566, 305 P.2d 651 (1957); Town of Lexington v. Ryder, 296 Mass. 566, 6 N.E.2d 828 (1937). If the same presumption arises as to both parties to an action, the presumptions simply cancel each other. McVay v. Byars, 171 Or. 449, 138 P.2d 210 (1943); and where presumptions of different legal weight are present, the stronger should prevail. Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871 (1945); Bromley v. Mollnar, 179 Misc. 713, 39 N.Y.S.2d 424 (1942); Nichols v. Mutual Life Insurance Co. of New York, 178 Tenn. 209, 156 S.W.2d 436 (1942).

Wigmore explains these rules on “presumptions of law” in terms of the burden of production of evidence:

“[T]he peculiar effect of a presumption ‘of law’ (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to ■the contrary from the opponent. If'the opponent does offer evidence to the contrary (sufficient to satisfy the judge’s-requirement of some evidence), the presumption disappears as a rule of law, and the case is in the jury’s hands free from any rule.” 9 Wigmore on Evidence, §. 2491(a), p. 288 (3d ed., 1940)

But difficult as these problems of “conflicting (Wigmore prefers “successive”) presumptions” may be, they are not .present here, since we are dealing with an instance of negligence per se. This is. more than simple negligence, and is to be-decided by the court. 9 Wigmore on Evidence § 2549(c) at p. 499 (3d ed., 1940). *663The distinction between negligence and negligence' per se is “the means and method of ascertainment,” in that the former maybe found by the jury from the evidence, while the latter results from the violation of a specific requirement of law or ordinance, the only fact for determination by the jury being the commission or omission of specific acts inhibited or required. Swoboda v. Brown, 129 Ohio St. 512, 196 N.E. 274 (1935). Accord: Pittman v. Sather, 68 Idaho 29, 188 P.2d 600 (1947); Kendrick v. Atchison, Topeka & Santa Fe Railway Co., 182 Kan. 249, 320 P.2d 1061 (1958); Nelson v. Zurich Insurance Co., 165 So.2d 489 (La.App., 1964). See also 28 Words and Phrases 693-694 (Perm.Ed.), 65 C.J.S. Negligence § 1(14), p. 461. Wigmore summarizes as follows:

“Where for the kind of case in hand a definite rule of law, more precise and concrete [than normal negligence, to be found by the jury], has been framed for determining the effect of the person’s conduct, this rule may, in the hands of the judge, conclude the question, and it may cease to be a question of fact for the jury to the extent that the rule of law applies. Thus, a defendant’s conduct in carrying a loaded gun on his shoulder in city street may be ruled by the Court to be ‘negligence “per se,” ’ or, in a common phrase, he may be held to have acted ‘at peril’ of answering for the harmful consequences; so that the question of fact for the jury is merely whether he carried the gun in that way, and the question whether he acted with due care ceases to be a question for them, because it is replaced by a specific and concrete rule of law.” 9 Wigmore on Evidence § 2552(a), p. 517 (3d ed., 1940)

As regards proximate cause, where a specific statute is violated so as to constitute negligence per se, an explicit statement of the applicable rule is contained in Bale v. Perryman, 85 Idaho 435, 442, 380 P.2d 501, 505,

“Clearly the statute here involved (I.C. § 49-713) [I.C. § 49-108 in the case at bar] is a safety statute enacted for the protection of all persons using our roads and highways. * * * There is no other reasonable interpretation of the evidence than to conclude that the voluntary act of respondent, which was a violation of law, resulted in his damage and proximately caused or contributed thereto.”

In the Bale case the defendant had attempted to pass plaintiff at an intersection, and in so doing, violated a statute. Plaintiff had turned left into defendant. The court held that plaintiff’s act was both negligent and the contributing proximate cause of the damages. Cf. Hamilton v. Carpenter, 49 Idaho 629, 290 P. 724 (1930). The same principle should apply in the instant case. The unexplained violation by both vehicle drivers of a statute— a safety measure — constituted negligence per se, and such was the proximate cause of ensuing injuries which Curtis T. Petersen sustained.

For the reasons hereinbefore stated the trial court erred in dismissing appellants’ first cause of action as to respondent administrator of the estate of Brent T. Johnson, deceased, rather than permitting the issue of Brent T. Johnson’s alleged simple or ordinary negligence to be determined by a jury.

The trial court also erred in dismissing said cause of action as to respondent administrator of the estate of Owen G. Johnson, deceased, rather than permitting the issue of Owen G. Johnson’s alleged gross negligence to be determined by a jury. The majority opinion holds that as a matter of law Owen G. Johnson could not be found grossly negligent on the basis of the existent facts in this case. I do not agree. It is settled law that when reasonable minds might differ as to whether certain conduct constitutes negligence or gross negligence, the issue is one for a jury’s determination. 60 C.J.S. Motor Vehicles § 258(c), p. 633, § 399(4), p. 998. Herein the facts present such an issue. The physical evidence and the testimony of the investigating officer *664establish that at the time of the collision, both cars were across the center line of the highway, — each driver on his driver’s wrong or left side thereof. I again point out that the highway was sufficiently wide to allow the simultaneous passage of two cars, and was relatively straight and level; visibility was good; at the place of the accident the view of the highway was unobstructed for several hundred yards in each direction. On the basis of those facts Owen G. Johnson’s conduct in driving on his wrong side of the highway in the face of oncoming traffic which he should have seen, constituted gross negligence, or at least the jury could so find.

Several cases from other jurisdictions have held that on the basis of little, if any, more evidence than is present in the case at bar, the question of gross negligence should be submitted to the jury. Most directly in point is Smith v. Turner, 178 Va. 172, 16 S.E.2d 370, 372, 136 A.L.R. 1251 (1941), in which the court held that “A fortiori, needlessly driving on the wrong side of a straight road, in broad daylight, in the face of a car rapidly approaching from the opposite direction and in plain view, is * * * gross negligence.” In that case the appellate court held that the lower court erred in taking the question of gross negligence from the jury, saying:

“ * * * if the violation of the right-hand rule of traffic by Mrs. Smith, under the circumstances of this case, was not gross negligence as a matter of law, it was at least a question for the jury as to whether such violation constituted gross negligence; * * 16 S.E.2d 370, 373.

In Burke v. Spear, 277 F.2d 1 (2nd Cir., 1960), the court held, in a case similar to the one at bar, that it was not error to submit the issue of gross negligence to the jury. The defendant in that case had moved for a directed verdict, contending that the facts were insufficient to establish a prima facie case for the jury. The court, however, affirmed a denial of the motion, holding that the district court was-correct in submitting the issue to the jury and in refusing to set aside the jury’s finding of gross negligence. See also Hall v. Wilkerson, 84 S.W.2d 1063 (Mo.App., 1935); Malone v. Clemow, 111 Cal.App. 13, 295 P. 70 (1931); Hartley v. Berg, 145 Or. 44, 25 P.2d 932 (1933); Smith v. Smith, 199 Va. 55, 97 S.E.2d 907 (1957).

The Court in its majority opinion, as contended by respondents, takes the view that the issue of gross negligence need not be submitted to the jury because a finding of gross negligence on the facts would nevertheless have to be set aside on appeal. I cannot agree. Several cases, in addition to those hereinbefore cited, have upheld a jury’s finding of gross negligence on the basis of no more evidence than was adduced in the case at bar. Several such cases are collected in Annot. 6 A.L.R.3rd 832 at 875-886. See also O’Nellion v. Haynes, 122 Cal.App. 329, 9 P.2d 853 (1932); Castro v. Singh, 131 Cal.App. 106, 21 P.2d 169 (1933); Collins v. Robinson, 160 Va. 520, 169 S.E. 609 (1933).

The fact stands undisputed that Owen G. Johnson, at the point of the collision, was driving on his wrong side of a wide, straight, level highway in broad daylight in the face of oncoming traffic. One could neither say that such conduct is insufficient as a matter of law to constitute gross negligence, nor as a matter of law that such conduct constitutes gross negligence. The cases cited amply demonstrate that the present case falls within that area in which reasonable minds might differ as to whether Owen G. Johnson was grossly negligent, thus presenting a factual issue for determination by a jury.

The judgment of involuntary dismissal of appellants’ first cause of action should be reversed and the cause remanded for a. new trial.

. A nonsuit under former I.O. Sec. 10-705 is “substantially in accord” with its successor, I.R.C.P. 41(b). See compiler’s note, I.R.C.P. 41(b).

. 49-708. Drive on right side of roadway —Exceptions.—(a) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:

1. When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;
2. When the right half of a roadway is closed to traffic while under construction or repair;
3. Upon a roadway divided into three (3) marked lanes for traffic under the rules applicable thereon; or
*6614. Upon a roadway designated and signposted for one-way traffic.
(b) Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions- then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.