Colwell v. Bothwell

Appellant, Elizabeth Bothwell, member of the Twin Falls High School girls' basketball team, scheduled to play the Blackfoot High School team there, consulted her father with regard to her using his automobile to transport the team. He at first said he had other plans which would interfere but later consented.

Appellant's statement of the circumstances of the accident giving rise to the suit herein are substantially correct as follows:

"That the basketball team was transported in two automobiles, one driven by Dale Wakem, an instructor, and the other by appellant, Beth Bothwell; that the trip was in charge of Mr. Wakem and Miss Call, the girls' athletic coach, the latter of whom directed the girls as to which car they would occupy and assigned them to their respective seats, including the respondent; that on the return trip and at a point near the home of Mrs. Jones on Kimberly Road, Mr. Wakem's car, which was in the lead, met the truck of Joe Williams after it had forced the witness Thietten off the highway, which truck was traveling on its wrong side of the highway, and forced the Wakem car to swerve off the highway and into the borrow pit, and that when the Wakem car skidded off the highway Elizabeth Bothwell applied her brakes and the car driven by her skidded to the left and across a portion of the paved surface of the highway and the truck ran into it, striking it near the front right-hand door. That the occupants of the Bothwell car did not observe the truck until just before the truck hit that car; that at or near the point where the brakes were applied the roadway had patches of mud and ice and that the Bothwell car had its two right-hand wheels on the shoulder off the paved surface at the time the brakes were applied; that the collision resulted in turning the Bothwell car completely around and it was eight inches to a foot further to the south or center of the road than it had been before the impact; that there was no place where the tracks showed that the car had been south of the center line of the highway unless it was the front wheels when it skidded around as it turned east."

The jury returned a verdict, in favor of respondent who was riding in the Bothwell automobile and was severely injured, against both appellants, upon which verdict judgment was entered and appealed from herein.

Respondent contends that under Gorton v. Doty, 57 Idaho 792,69 P.2d 136, the evidence shows Miss Bothwell was the agent of her father, making him liable for her negligence.

The case herein is similar to the Doty case and is controlled by it to this extent: here as therein the pupils were instructed by the teachers in which cars they should ride, whereby the court there held as a matter of law they were not guests of the driver or owner of the automobile, but there the similarity ceases. The placing of responsibility on the owner of the car in the Doty case was based on this testimony of Miss Doty, owner therein, that "I said that he (Russel Garst, driver of the automobile) might use mine (automobile) if he drove it," which the court held was sufficient to sustain the verdict on the theory that the owner of the car had made that specific individual, Russel Garst, restrictively her agent to drive the car. It is virtually conceded neither the family purpose doctrine (Gordon v. Rose, 54 Idaho 502, 33 P.2d 351, 93 A.L.R. 984) nor mere ownership in the automobile, since without dispute no purpose of James R. Bothwell was being served by the trip (Willi v. Schaefer Hitchcock Co., 53 Idaho 367,25 P.2d 167) applies or is adequate to show agency liability. Thus the only evidence to sustain agency herein or make James R. Bothwell responsible for the acts of Elizabeth Bothwell as his agent was this cross-examination of Miss Bothwell: "and your father understood you were to drive the car on this trip?" Answer: "Yes." The question was objected to on the ground it assumed something not in evidence and called for a "conclusion of the witness as to what her father understood."

In the first place the objection was good as calling for a conclusion as to the state of mind of one other than the witness. (Keane v. Pittsburgh Lead Min. Co., 17 Idaho 179. 189, 105 P. 60.) In the second place the usual and ordinary definitions of the words "understood" and "understand" do not sufficiently make it equivalent to the admonition accompanying the loaning of the car in the Doty case held to be sufficient therein to establish that appellant James R. Bothwell directed his daughter herself, and no other, should drive the automobile.

The insufficiency of the evidence herein to show agency is further emphasized by Miss Bothwell's testimony on cross-examination thus:

"Q. Elizabeth, did you have any conversation with your father about the use of this car in which anything was said about who would drive the car?

"A. No, I don't believe anything was said about that."

Thus there being no sufficient evidence to show agency the judgment against James R. Bothwell should be reversed and the cause as to him dismissed.

As to appellant Beth Bothwell there remains among others the question (which, because the majority holding reversing the case is alone discussed, none of the others being prejudicial) of whether the evidence shows sufficient negligence on her part to sustain the verdict. Section 48-515, subd. a, is as follows:

"The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicles and the traffic upon and condition of the highway."

The rule is quite generally declared to be that one driving an automobile following another must drive so as to be able to stop quickly enough or otherwise maneuver to prevent injury to others, taking into consideration the condition of the road, speed, volume, kind, extent, hazards and flow of traffic, obstacles along or adjacent to the road and all other circumstances which may be reasonably anticipated to affect the operation of the automobile by the one following and in connection therewith. (Hedberg v. Cooley, 115 Conn. 352,161 A. 665; McDonough v. Smith, 86 Mont. 545, 284 P. 542;Gornstein v. Priver, 64 Cal. App. 249, 221 P. 396; Power v.Crown Stages Co., 82 Cal. App. 660, 256 P. 457, 460;Cirquitella v. C. C. Callaghan Inc., 331 Pa. 465, 200 A. 588;Grayhound Cab Co. v. Sewell, 172 Md. 699, 190 A. 814; Adamsv. Morgan, (La.App.) 173 So. 540; Ritter v.Johnson, 163 Wash. 153, 300 P. 518, 79 A.L.R. 1270;Williamson v. Clark, 103 Vt. 288, 153 A. 448; Stromer v.Dupont, (La.App.) 150 So. 32; Jellico Grocery v. Biggs,252 Ky. 827, 68 S.W.2d 429; Berry on Automobiles, vol. 2, p. 524; Blashfield, Cyc. of Automobile Law, sec. 942; Huddy, Cyc. Automobile Law, vols. 3-4, p. 194, sec. 121; 42 C.J. 949.)

While varying distances between leading and following cars have been held either too close or sufficient, as bearing on negligence, (Cannon v. Brown, 142 Kan. 700,51 P.2d 1007, 1008), and while some cases hold skidding of itself does not show negligence (Simpson v. Jones, 284 Pa. 596,131 A. 541; Pinckard v. Pease, 115 Wash. 282, 197 P. 49; Moir v.Hart, 189 Ill. App. 566; Smith v. Levison, 222 A.D. 310,226 N.Y. Supp. 311); some that as a matter of law skidding is negligence (Minneapolis St. Ry. Co. v. Odegaard, 182 Fed. 56;Knudson v. Bockwinkle, 120 Wash. 527, 208 P. 59; Deitchler v.Ball, 99 Wash. 483, 170 P. 123; Davis v. Pere Marquette Ry.Co., 241 Mich. 166, 216 N.W. 424), the rule more consonant with the decisions of this court is that under the circumstances here, that is the condition of the road, the distance between the Wakem and Bothwell automobiles, speed, and the fact that the Bothwell automobile, although immediately prior to the accident apparently well on the north side of the road, skidded to the left at least to the extent that it did not go straight ahead or off to the right onto the berm or into the borrow-pit, the question of her negligence was for the jury. (Burns v. Cote, 86 N.H. 167, 164 A. 771; Tente v.Jagloaicz, 241 Ky. 720, 44 S.W.2d 845, 848; Bloom v. Allen,61 Cal. App. 28, 214 P. 481; Keys v. Griffith, 153 Or. 190,55 P.2d 15; Koppang v. Sevier, 106 Mont. 79,75 P.2d 790; Fitzpatrick v. Pralon Cleaners Dyers, 129 Pa. Super. 437,195 A. 644; Gilreath v. Blue Grey Transp. Co., 269 Ky. 787,108 S.W.2d 1002; Sisson v. Anderson, 165 Va. 629,183 S.E. 431; National Liberty Ins. Co. v. Foth, 254 Mich. 152,235 N.W. 821; DeAntonio v. New Haven Dairy Co., 105 Conn. 663,136 A. 567; Glennie v. Falls Equipment Co., 238 A.D. 7,263 N.Y. Supp. 124; Nafziger v. Mahan, (Mo.App.) 191 S.W. 1080.)

Conceding that Williams was guilty of negligence in being under the influence of liquor and driving his car on the wrong side of the road and thus caused the Wakem car to suddenly slow down, necessitating the sudden slowing of the Bothwell automobile and therefore his conduct was one of the proximate causes contributing to the accident and respondent's injury, there likewise remains the question of whether Miss Bothwell was negligent and her negligence was one of the proximate causes contributing to the accident thus rendering her liable. (Brose v. Twin Falls Land WaterCo., 24 Idaho 266, 133 P. 673, 46 L.R.A., N.S., 1187.) This is particularly so because the appellants offered evidence that the brakes of the Bothwell automobile were in good condition and a speed of over 35 miles an hour is prima facie negligent. (Sec. 48-504, I. C. A.)¹ If the brakes were in perfect order then it was a question for the jury whether if the Bothwell car had not been so close to the Wakem car or had not been traveling at the speed of 45 to 50 miles an hour, itself primafacie negligence under sec. 48-504, subd. b.8, I. C. A., supra, the surface of the pavement being somewhat wet and the berm or shoulder muddy, it could have been slowed down without swerving or skidding or slowed down enough to turn to the right to avoid the truck even though the truck was on its wrong side of the road. The jury might well have considered, and evidently did so consider, that the Bothwell car could have avoided the accident, or should have, if it was not being driven negligently, by means other than being driven down into the borrow-pit. It was legitimate for the jury to consider that Wakem, both his auto and the Bothwell car traveling at about the same rate of speed, had without injury to anyone extricated himself from the problem presented by the Williams' eratic and menacing approach. True Beth Bothwell was faced with the additional element of being the following car, but that was merely one more condition to be taken into consideration in exercising the necessary due care and circumspection to avoid negligence. This court has at numerous times reiterated that where reasonable minds might differ the question of negligence is for the jury. (Adams v. Bunker Hill Sullivan Min. Co.,12 Idaho 637, 89 P. 624, 11 L.R.A., N.S., 844; Wheeler v.Oregon R. etc. Co., 16 Idaho 375, 102 P. 347; Pilmer v. BoiseTraction Co., 14 Idaho 327, 94 P. 432, 125 Am. St. 161, 15 L.R.A., N.S., 254; Carr v. Wallace Laundry Co., 31 Idaho 266,267, 170 P. 107; Cooper v. Oregon Short Line R. Co., 45 Idaho 313,262 P. 873; Brown v. Jaeger, 46 Idaho 680, 271 P. 464;Idaho Apple Growers Assn. v. Brown, 51 Idaho 540,7 P.2d 591; Burns v. Getty, 53 Idaho 347, 24 P.2d 31; Miller v.Gooding Highway Dist., 55 Idaho 258, 41 P.2d 625; Bennettv. Deaton, 57 Idaho 752, 68 P.2d 895.)

The record shows the Bothwell car had skidded around to the left before it was ever struck by the Williams truck, and the Williams truck was damaged on its left side, the Bothwell car on its right side, so the Williams truck was not so far on the north or its wrong side of the road as to have come against the Bothwell car from the north. Thus the skidding of the Bothwell car placed it in the place of danger which would not have occurred if it had gone straight ahead.

The judgment against James R. Bothwell should be reversed and the cause as to him dismissed and the judgment against Miss Bothwell affirmed.

Morgan, J., concurs with Givens, J.

Petition for rehearing denied.

¹ Sec. 48-504, subd. b. 8, I. C. A., is as follows:

"b. Subject to the provisions of subdivision a of this section and except in those instances where a lower speed is specified in this chapter, it shall be prima facie lawful for the driver of a vehicle to drive the same at a speed not exceeding the following, but in any case when such a speed would be unsafe it shall not be lawful.

"8. Thirty-five miles an hour under all other conditions.

"It shall be prima facie unlawful for any person to exceed any of the foregoing speed limitations except as provided in subdivision c. of this section. In every charge of violation of this section the complaint, also the warrant or notice to appear, shall specify the speed at which the defendant is alleged to have driven, also the speed which this section declares shall be prima facie lawful at the time and place of such alleged violation."