Kuhn v. Dell ( 1965 )

SMITH, Justice.

This is an appeal from an order granting a motion for eí new trial in favor of respondent (plaintiff) upon the ground, as stated in the- order:

“that the pleadings and evidence * * * raised the issue of whether or not defendant had the last clear chance to avoid the accident involved in this action, and the issue having been made, it should be submitted to the jury for determination.”

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 op-' erated 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, there must be substantial evidence to support the application of the doctrine. Schwandt v. Bates, 88 Idaho 131, 397 P.2d 244 (1964); Allen v. Idaho Power Company, 84 Idaho 309, 372 P.2d 80 (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 (1936).

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:

“Q. And could you tell us what happened as you were going along here on this road going towards Nampa?

“A. Well, just as I was going on, I noticed a car [not involved in the collision] turning on from Greenhurst Road turning on the highway and suddenly I saw a pair of headlights or tail lights reflecting my lights reflecting off his * * * and I hit him [Kuhn].

“Q. * * * now the car that you say you saw turning onto Greenhurst Road, that is not the automobile you hit?

“A. No, it isn’t.

“Q. And that automobile was some distance away?

“A. It was probably a quarter of a mile away.

“Q. * * * where were you observing as you came down the hill?

“A. I was looking straight ahead of me.

“Q. And was that for some distance that you had been coming down the hill' and able to see below you?

“A. The hill extends three-quarters to a mile. It slopes all the way down that far.

“Q. * * * what did you do when you saw those pair of tail lights in front of you?

“A. Well, I tried to put on my brakes or to swerve but I hit him before I could do anything.

“Q. And just exactly, could you tell us the condition of those tail lights at the time that you saw them ?

“A. It looked just like reflected glass on the side of the road or on the signs along the side of the road. It looked just like it was reflecting back. It didn’t look like they were on.

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“Q. Now was there any obstructions to your vision as you proceeded down this slope toward Nampa?

“A. No, there wasn’t.”

He further testified that when proceeding down the slope he first saw the Kuhn autotomobile when it was about SO 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:

“Q. And when you left ' * * * the Sheriff’s Office of Canyon County, did you have your lights on?

“A. No.

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“MR. WILLIAMS: Was visibility possible without lights at that time?

“MR. LYNSKEY: Yes.”

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 Wash. 432, 171 P. 242, L.R.A.1918D, 1119 (1918), stated:

“ ‘Much of the confusion attending the doctrine of the last clear chance has come from a seeming belief on the part of many judges and text-writers that it is in itself a principle of law and subject to arbitrary definition, whereas it is no more than a judicial exception to established principles, resting in fact, and not in law. The chance to avoid an injury is a relative question, to be resolved solely by reference to the facts of each particular case. If the one party knows of the peril of the other, although brought about by the other’s negligence, in time to avoid injuring him, he is at once put to a degree of care commensurate with the present situation of the parties.’ [Citation].”

Additionally this Court in Cournyer v. Follett, 85 Idaho 119, 122, 376 P.2d 707, 708, 709 (1962), held:

“ ‘That doctrine implies thought, appreciation, mental direction and lapse of sufficient time effectually so to act as to save another from injury to which he has negligently exposed himself. It is not applicable where the emergency is so sudden that there is no time to avert the accident.’ ”

In Lallatin v. Terry, 81 Idaho 238, 250, 340 P.2d 112,120 (1959), the rule is stated:

“ * * * Juries should not be asked or allowed to speculate upon possibilities of avoiding an injury under the circumstances which would be beyond human experience, and on the side of the miraculous. Courts sometimes overlook the fact that the doctrine [of the last clear chance] not only requires that the chance must be the ‘last’ chance, but it must also be a ‘clear’ chance.”

See also Schwandt v. Bates, 88 Idaho 131, 397 P.2d 244 (1964); Laidlaw v. Barker, 78 Idaho 67, 297 P.2d 287 (1956); 38 Am. Jur., Negligence, § 219; 65 C.J.S. Negligence § 137e.

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:

“ * * * Actually, allowing 50 feet for reaction time adding the 66 feet of skid marks before the impact, plaintiff’s car was 116 feet south of the point of collision at the time she first became aware of defendant’s turning. The pickup at that moment was also some short distance south of the point of impact. At 50 miles per hour, Mrs. Hale had approximately 1.59 seconds in which to avoid the collision. Obviously she could not have avoided the collision by turning to the left, and time did not permit her to slow down sufficiently to avoid the pickup by turning to the right. The doctrine of the last clear chance has no application in such an emergency. [Citations].”

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:

“* * * it [the last clear chance doctrine] is not applicable where the emergency is so sudden that there is no time to avert the accident. In the case here, the act which created the peril occurred at practically the same time as the accident in that only six-tenths to seven-tenths of a second, mathematically calculated, elapsed from the time the Laidlaw boy’s peril became apparent to appellant Barker before the accident; under the circumstances appellant did not have a last clear chance to avoid the accident. The last clear chance must be a clear one. [Citations.]” 78 Idaho at 74, 297 P.2d at 291.

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 such evidence an instruction on last clear chance should not have been given.

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 he 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.