(dissenting).
I dissent.
Since 1903 this court has consistently adhered to the principle that the findings of fact of a trial court, sitting without a jury, will not be disturbed on appeal where such findings are sustained by substantial evidence even though there may be other conflicting evidence. In Parke v. Boulware, 9 Idaho 225, 73 P. 19, Chief Justice Sullivan, in an opinion concurred in by Justice Ailshie, expressed this principle thusly:
“We have examined the evidence carefully, and, while there is a decided conflict in it, we think the findings of fact are sustained by it. That being true, the well-settled rule that where there is a substantial conflict in the evidence, the findings will not be disturbed, must be adhered to.”
More recently this same principle has been expressed as:
“Where the findings of the trial court are supported by substantial and competent, though conflicting, evidence, such findings will not be disturbed on appeal.” Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006; Freedman v. Hendershott, 77 Idaho 213, 290 P.2d 738; Molstead v. Reliance National Life Insurance Co., 83 Idaho 458, 364 P.2d 883; Nichols v. Knowles, 87 Idaho 550, 394 P.2d 630; Jackson et al v. Blue Flame Gas Company, 90 Idaho 393, 412 P.2d 418 (1966).
Another principle long adhered to by this court is that the trial judge is the arbiter of conflicting evidence, and his determination of the weight, credibility, inference and implications thereof is not to be supplanted by this court’s impressions or conclusions from the written record. Sellars v. Sellars, 73 Idaho 163, 248 P.2d 1063; Fish v. Fleishman, 87 Idaho 126, 391 P.2d 344; Jackson et al v. Blue Flame Gas Co., supra.
These principles are most aptly expressed by Justice Givens in speaking for a unanimous court in Conley v. Amalgamated Sugar Co., 74 Idaho 416, 263 P.2d 705, wherein he stated:
“After the court has found, the criteria are not what other or different findings *537the evidence could or would sustain, not what findings are plausible, not the weight or quality of the evidence or credibility of witnesses, but the sole criterion is simply whether there is substantial evidence, regardless of conflict, to sustain the findings as made, with all reasonable inferences and intendments in favor thereof. This proposition is so universal, so oft repeated and adhered to as to need no citation of authority in support thereof. It is not what evidence tends to support appellant, or negative that favorable to respondents, but it is what evidence tends to support respondents, with all reasonable inferences and intendments to be drawn in favor of respondents, which controls the determination of the controversy in this Court.
“It is almost axiomatic that the time and place to win the factual features of a law suit is in the trial tribunal, not in the appellate court.” (found at page 424, 263 P.2d at page 709)
Now let us apply these principles to the case at hand.
After listening to the testimony of the witnesses and having the advantage of observing them personally, and having weighed all the evidence carefully, the trial •court made the following pertinent findings •of fact:
“6. That the accident in which deceased was involved as herein described took place at about 11:30 o’clock P.M., and as a result of the accident the decedent was killed.
“7. That U. S. Highway 30 is a four-lane highway divided by two yellow lines, with two lanes of traffic for travel in each direction, and in the area of the accident the double yellow lines are continuous and unbroken.
“8. That immediately preceding the accident, the defendant, Joseph G. Green, drove the Sinclair truck and trailer from private property on the south side of said U. S. Highway 30 in a northeasterly direction over and across said highway, said truck and trailer being about sixty feet in length, attempting to enter the bulk plant of Sinclair Refining Company on the north side of said highway. That said crossing attempted by the defendant, Joseph G. Green, is about eighty feet, taking about twenty seconds at a minimum to accomplish the complete crossing of said highway, in a truck of the type driven by said defendant, Joseph G. Green on the night of the accident. That from the point of the beginning of the crossing, the Union Seed curb cut, the driver of said truck had a visibility of westbound traffic on said highway of about six hundred ninety feet. That the speed limit as established by proper authorities from the point of ultimate visibility to the point of the im*538pact is thirty-five miles per hour. To the west from the place of the accident and west of the City of Burley said highway enters a more or less open area with a less restrictive speed limit, [emphasis supplied]
í{í 5|C Jfc ‡ *
“10. That at the time of said accident the said trailer was blocking all of the outside lane and a part of the inside lane ' of the road which was for westbound traffic.
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“17. That preceding the Durham automobile west was an automobile driven by one Cecil Matlock and the Matlock automobile was proceeding west followed by two automobiles, one driven by Dale Durham and one driven by Art Ramsey.
“18. That the Sinclair bulk plant is located on the north of U. S. Highway 30 and had and has an opening for travel on the west and on the east ends of the property. That the defendant, Joseph G. Green, could have unloaded the diesel fuel he was delivering on March 8, 1964, by entering the plant area from the east entrance. That all of the diesel fuel could have been unloaded by entering the plant from the east opening rather than the west opening. That it was not necessary for the defendant, Joseph G. Green, to enter the plant from the west opening as he attempted to do at the time of the
accident, nor to block with his vehicle the outside and inside lanes of westbound, traffic on said highway, and by entering' from the east he would not block the inside lane of westbound traffic.
“19. That immediately preceding the-entry of said highway Joseph G. Green could not see any westbound traffic, except the Matlock automobile.
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“23. That a driver proceeding west on U. S. Highway 30 driving thirty-five miles per hour requires only 13.44 seconds to travel the distance from the point of easternmost visibility of the defendant, Joseph G. Green, to the crossing point where the accident occurred.
“24. That it is impossible for the crossing truck and trailer to achieve the crossing of U. S. Highway 30 in the length of time it takes westbound traffic, not visible to the driver of the truck and trailer, approaching and travelling within the legal speed limit, to reach the crossing point. That westbound traffic approaching the point of visibility to the east at about the same time the crossing of the highway begins must, unless the truck and trailer stop, slow or stop for the truck and trailer to avoid a collision. That on March 8, 1964, at the time the crossing was attempted, the vehicle driven by Dale Durham, travelling west in the outside lane of said four lane public *539highway, collided with the truck. As a result of the collision the plaintiffs’ daughter a nineteen year old, unmarried girl was injured and died.
“25. That the defendant, Joseph G. Green, was negligent in the operation of the truck and trailer combination in crossing U. S. Highway 30 in the manner and at the time of the accident.
“26. That entry into the Sinclair bulk ■plant from the easterly opening could have been achieved without any danger to traffic travelling west on U. S. Highway 30.
“27. That the said Dale Durham was driving his automobile in a lawful lane of traffic at all times mentioned herein.
“28. That the driver of the automobile, Dale Durham, was negligent in the operation of his automobile, but that the passenger, Charlotte Ann Reed, was not negligent.
“29. That the combined negligence of the defendants, and Dale Durham is the proximate cause of the collision and the death of plaintiffs’ daughter, Charlotte Ann Reed.
“30. That the negligence of the driver of the automobile, Dale Durham, was not a superseding cause of harm to plaintiffs’ daughter, Charlotte Ann Reed.
“31. That the amount of special damages as alleged are reasonable in amount and were necessarily incurred by the plaintiffs and were actually incurred, and are the sum of $993.10, and general damages of $10,000.00 were suffered by the plaintiffs.”
From these findings of fact, the trial court concluded that the negligence of both drivers Green and Durham were proximate causes of the death of the deceased daughter of respondents, that the negligence of Durham (the driver of the automobile in which the deceased girl was riding as a passenger) could not be imputed to the deceased girl nor the respondents, her parents, and awarded the respondents special damages in the sum of $993.10 and general damages in the sum of $10,000.00.
Under the principles previously cited in this opinion, the only question for this court is whether or not there is competent and substantial evidence to sustain the findings of fact of the trial court.
To assist the readers of this opinion in following and understanding the pertinent evidence adduced at the trial, there is appended to this opinion a diagram depicting the essential physical features of the scene of the accident as set out in the topog map introduced in evidence as Plaintiffs’ Exhibit A.
The facts are quite fully and fairly set forth in the majority opinion, but for the purposes of this dissent I wish particularly to emphasize some of them. Referring to *540the diagram (Plfs. Exh. A) and particularly the small cutout or insert at the bottom thereof, it is well to realize that defendant Green, the driver for the corporation-defendant approached the scene of the accident from the east or the right hand side of the diagram, and was travelling in a westerly direction; he stopped at the railroad track shown to be located a little west of the intersection of the Burley Main Street (also designated as State Highway 30) and Park Avenue. Green’s destination was the Sinclair plant, located just to the north of West Main Street. Green admitted in his testimony that this could have been accomplished by entering the east entrance to the plant designated on the diagram as a “27-foot curb cut” and this could have been done by merely turning right from the north or westbound lane of traffic. Instead Green chose to turn left shortly after crossing the railroad track, cross the two south or eastbound traffic lanes of the highway, enter the Union Seed Company property to the south of the highway, make a half circle or U turn on this property and re-enter the highway at what is designated as a “45-foot curb cut” located just east of the Union Seed Company building. This, of course, constitutes a private road or driveway entering upon a highway. Here Green stopped, looked both ways, permitted two cars approaching from the west going east to pass, then proceeded to enter the highway and attempt to cross
it diagonally to enter the Sinclair plant at the west entrance thereto, marked on the diagram as a “33-foot curb cut.” One of the vital facts for the determination of this case is the visibility of Green to his right or to the east just prior to his entry onto the highway from the private driveway. It is well to remember that this is-at 11:30 o’clock p. m. It was dark. The most reliable evidence in this entire record concerning the extent of this visibility is-the testimony of Green himself. This is-what he said concerning the Matlock vehicle which approached from the east and' was required to slow down and stop to avoid collision with the Sinclair vehicle:
“Q Did you observe any cars that evening?
“A Not at the time that I started to cross, no.
“Q When did you observe a car, Mr. Green ?
“A Well, when I was about halfway across the road, there a car I found out later was Mr. Matlock’s, his-lights was coming up the inside-lane, and he was slowing down.
“Q I see. And what were you doing then at that time?
“A I was going across the road and getting into the plant.
“Q And do you know why he was slowing down ?
*541“A Yes.
“Q Why was he slowing down, Mr. Green ?
“A To give me time to get into the plant.
“Q Do you know where he had come from?
“A Well, he told me later he came off Occidental, yes.
(By “Occidental” the witness is referring to Occidental Avenue which intersects Main Street or Highway No. 30 just to the east of Park Avenue and is designated on the far right hand side of the insert on the diagram Plfs. Exh. A)
“Q And this is what, a couple or three blocks from where you crossed ?
“A Yes, it is.
“Q And it is around the curve from where you crossed, is it not ?
“A It is — you can see it — you can just see Occidental on the north side from where — you check both ways from the cab of your truck there when you are getting to start across the highway, [emphasis supplied] ‡ * * * * *
“Q And then you looked to the east. That would have been which direction, right or left, that you would have looked east?
A Looking east, I would have been looking to my right, if I had looked to the east.
“Q And you didn’t see any vehicles on the road?
“A I did not.
“Q Do you know about how far you could see, Mr. Green, down to the east?
“A To the east there you can see Occidental, and that’s about the—
“Q Occidental, looking at this cutaway here, Occidental is not on the map, marked on the map, and that is the street to which you have reference ?
“A Yes, it is.
“Q Now, which part of Occidental can you see from the position you were here at the Union Seed marked with the small x, [the small x referred to in this question was marked by the witness in what has been referred to and is designated on the diagram as the 45-foot curb cut or private highway on the Union Seed Company property located just east of the Union Seed Company building on the diagram, Plfs. Exh. A.]
“A You can see the north side.
*542“Q Would you mark that—
“A You could see the side the west coming traffic would be, yes.
“Q Would you mark that with a little number 3 on the cutaway there? Would you mark the portion of Occidental that you could see?
“A Oh, yes, see this four-lane road just about right here.
■“Q That’s not Occidental, is it?
“A Isn’t that Occidental?
“Q Well I am asking you. Do you read the word Occidental on here ?
“A Right about here where you can see right here.
“Q Will you mark that with a little 3, please.
•“A Yes.
“Q That’s the part you can see ?
“A Yes.
■“Q From where you were at Union Seed?
•“A Yes.
(The witness marked a small “3” in the cutaway on Plfs. Exh. A, on the northernmost side of the highway just east of Occidental Avenue.)
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■“Q Yes, and you could see some of the traffic in this road in the northernmost lane of Main, just a little ways past Occidental ?
“A Yes, you can.
“Q And it was the same on March 8, 1963?
“A That’s correct.”
From this testimony it is evident that the driver, defendant Green, on the night in question and immediately prior to the time of this accident, had visibility as he was parked on the south side of the highway before entering upon the highway only to a point a little east of Occidental Avenue.
As opposed to this the majority opinion relies heavily, if not entirely, on the testimony of two policemen, who took measurements in the daylight from the position of the defendant’s truck occupied just prior to entering the highway, to a point they could see in the daylight on the northernmost side of Highway 30 to the east and measured this to be a distance of 850 feet. The same witnesses however further established that the highway to the east started to curve a distance of only 377 feet east of the Union Seed Company private driveway used by the defendant driver, and it gradually continued to curve to the south until there was no visibility whatever at the distance of 850 feet. These same officers further established that the distance from the private driveway to the center of the intersection of State Highway 30 and Occidental *543Avenue was 690 feet. This is the distance of visibility found by the trial court, and from Green’s own testimony he could see only a little farther east than that; no estimate of the additional distance in feet was ever made.
As computed by the trial court, a vehicle travelling at the legal rate of speed of 35 m. p. h. would travel the distance between Occidental Avenue and the point of impact of this collision in a matter of only 13.44 seconds. That it was impossible for Green to enter the highway from a stopped or parked position and drive his vehicle — a cab, truck and trailer — diagonally across the highway through the gate and into the Sinclair plant without obstructing the highway to traffic lawfully using the two north lanes or the ones lawfully used by traffic travelling west, is graphically shown by the fact that the car driven by Matlock had to slow down and stop some 50 feet before reaching the path used by Green in crossing the highway in order to avoid a collision with the Green-Sinclair vehicle.
The evidence is uncontradicted, that the distance to be travelled by Green across the highway was 80 feet; his cab, truck and trailer measured 60 feet in length and by his own testimony it required a period of 20 seconds for him to clear the highway. Note too that this 20-second interval was established by tests run by Green in driving a similar vehicle across this highway in the daylight and at times when the defendants were preparing themselves for trial of this matter. It is important to note that the trial court found the crossing attempted by Green would require 20 seconds at a minimum.
This is a specific instance in which the determination of the trial judge concerning the weight, credibility, inferences and implications of the evidence adduced at the trial should not be supplanted by the impressions or conclusions of the appellate court taken solely from the written record. The obvious inference and implication here is that on the night of this fatal accident at least, and probably more than, 20 seconds were required by this defendant-driver Green in crossing this highway in the dark of night endeavoring to enter a narrow gateway and make an abrupt turn to the right at the Sinclair plant. In any event it was necessary for Matlock in stopping at the intersection of Occidental Avenue at Highway 30, entering thereupon, and proceeding a distance of about 690 feet, to slow down and stop to avoid colliding with the defendant’s vehicle.
As hereinbefore pointed out, in my opinion there is abundant competent and substantial evidence supplied by the defendant Green himself to sustain the finding of the trial court that his visibility to the east did *544not much exceed the distance of 690 feet; hut for the sake of argument let us assume that this evidence has been completely overcome by the testimony of the officers who took their measurements of the visibility in the daytime. We then have established a visibility of 850 feet. At the lawful rate of speed of 35 m. p. h. an automobile approaching from the east will be travelling at 51.33 feet per second and on the portiori of the highway designated as lawful for such travel, would cover the distance of 850 feet in less than 17 seconds. The defendant’s vehicle would still be three seconds short of having cleared the highway, even under the 20-second test, made by defendant in the daylight and in preparation for evidence to be adduced at the trial.
It therefore becomes obvious that Green could not enter upon and cross the highway, as attempted here, using the type of vehicle he was driving on the night of this accident, without subjecting the travelling public approaching from the east to the hazard of slowing down, stopping, or turning to the left from the lawful lanes of the highway to avoid colliding with defendant’s vehicle. This is certainly a violation of the provisions of I.C. § 49-730:
“The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on said highway.”
Under the circumstances in this case, it was impossible for Green to have complied with the provisions of this statute, and his noncompliance constitutes negligence. His negligence is even more evident when, as pointed out by the trial court, he had the alternative of entering the Sinclair plant at the entrance and gateway on the east end of the Sinclair property, making such entrance from the proper northern lane of traffic, thus obviating the necessity of attempting to drive diagonally clear across four lanes of traffic from the private driveway of the Union Seed Company and necessarily blocking or obstructing the two north lanes of traffic properly to be used by the travelling public going from the east to the west at the scene of this accident.
The case of Sandberg v. Spoelstra, 46 Wash.2d 776, 285 P.2d 564, at 567 (1955), is particularly applicable here. There the court said:
“At five miles an hour it would have taken almost ten seconds to clear the westbound traffic lane if he had gone directly across the road; obviously, he had to travel farther and take longer because he was proceeding at a forward angle across the westbound traffic lane. It is clear that he gambled that either no vehicle was approaching for a considerable distance beyond the curve 375 *545feet away or that, if one was coming, it could and would avoid a collision by stopping, slowing abruptly, or yielding him whatever portion of the westbound traffic lane he needed.”
This is precisely what defendant Green did in this case. He gambled and he lost. Such action on the part of defendant Green in violation of a positive statute could easily be deemed negligence as a matter of law.
In any event the conduct of defendant Green was such it presented facts to be submitted to the finder of facts, be it a jury or the court, on the question of negligence; and the trial court was correct in finding negligence — this being sustained by competent and substantial evidence. Sandberg v. Spoelstra, supra; Provin v. Continental Oil Co., 49 Cal.App.2d 417, 121 P.2d 740 (1942).
It cannot be seriously contended that such negligence was not one of the proximate causes of the accident and the death of the deceased girl, because “but for” the fact that the truck and trailer was blocking and obstructing all of the north lane of traffic and part of the inside north lane of traffic, the accident would never have occurred.
The fact that the- driver of the other car (Durham) was also negligent, and that his negligence was an additional proximate cause of the accident and the death of the deceased girl, is immaterial. That there can be two or more proximate causes of an injury or a death is established in Idaho. Pigg v. Brockman, 85 Idaho 492, 381 P.2d 286. Under the circumstances here negligence of the driver Durham is not imputable to the passenger occupant, the deceased girl.
As one of the assignments of error, appellants contend that the judgment awarded respondent was excessive. This is bolstered by merely one paragraph in their brief, with no citations or authorities upon which to base it, and this was ignored entirely in their oral argument before the court. This was not seriously urged by appellants and should not be so considered by this court.
The judgment of the trial court should be affirmed.
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