Cupples Mercantile Co. v. Bow

MORGAN, C. J. While traveling at night in an automobile along a public highway in a westerly direction appellants collided with an automobile belonging to respondent, in charge of one of its officers, traveling in an easterly direction. The middle portion of the highway, a space about 16 feet wide, was paved and there .was a graveled strip from two to four feet wide on each side of the pavement. Appellants testified they were traveling along the extreme northerly border (their right-hand side) of the paved portion and that respondent’s car was somewhat north of the middle of it; that as the ears approached each other respondent’s driver turned sharply to his left and caused the collision. The occupants of respondent’s car testified both autoipobiles traveled along the extreme south edge of the pavement, and so continued to approach one another until it'became apparent a collision would result unless their driver turned sharply to his left, which he did; that thereupon the driver of appellants’ car turned sharply to his right and the collision resulted; also that there was a ditch to their right which rendered it unsafe to attempt to pass on that side. There is testimony, which is contradicted, tending to show the driver of the ear in which appellants were riding was intoxicated. These conflicts were undoubtedly resolved by the jury in favor of respondent, and, following the well-established rule that where there is substantial evidence to sustain a verdict it will not be disturbed on appeal because of conflict (Hardy v. Ward, 31 Ida. 1, 168 Pac. 1075; Brown v. Hardin, 31 Ida. 112, 169 Pac. 293), we will proceed upon the theory that the testimony given on behalf of respondent is true and that given on behalf of appellants, contradictory thereof, is untrue. Respondent sued for damages to its automobile. Appellant, Herth, answered and after denying the material allegations of the complaint alleged, by way of cross-complaint, that he was the owner and driver of the automobile occupied [777] by appellants and that appellants, other than himself, had employed him to transport them from Nampa to Boise and return, which he was doing at the time of the collision. He asked for judgment against respondent for damage to his automobile. Appellants, other than Herth, answered putting the material allegations of the complaint in issue and denying liability on their part. Judgment was in favor of plaintiff against all the defendants, and this appeal is from an order overruling a motion for a new trial. “The law of the road” as it was when this collision occurred is to be found in C. L., sec. 63:27, p. 395, as follows: “Whenever a person operating a motor vehicle shall meet on the public highway any other person riding or driving a horse or horses, or other draft animals or any other vehicle, the person so operating such motor vehicle shall reasonably turn the same to the right so as to give half of the traveled road, if practicable, and a fair and equal opportunity to pass, to the other, without interference; . . . . ” The theory of “the law of the road” upon which this case was tried is shown 'by the instruction given to the jury as follows: “If the jury believe from the evidence that just before the collision between the automobile of plaintiff and the automobile in which the defendants were riding, the said automobile of plaintiff was being driven on the right-hand side or south of the center of the public highway, and that the automobile containing the defendants was proceeding in an opposite direction and on the same side of such public highway, and if you further believe from the evidence that the driver of the car of plaintiff as an ordinarily prudent and careful person, had reasonable cause to believe, from appearances and under all the circumstances shown by the evidence, that plaintiff’s car was about to collide with the approaching car carrying the defendants, the driver of plaintiff’s car had the right to turn to the left in order to avoid a collision, and, in so doing, the-driver of plaintiff’s car would not be guilty of negligence, providing you find there was no reasonably safe place for the driver of plaintiff’s car to turn out to the right. If there was a reasonably safe place for the driver of plain [778] tiff’s ear to turn to the right, it was his duty so to do, and in that event his turning to the left would be negligence, and plaintiff could not recover.” The collision occurred on the extreme north side of the road, respondent’s car being north of that of appellants and entirely off the pavement, in such position as to demolish the right .front wheel of each of them. While some of the witnesses testified to conclusions to the contrary, it is entirely clear from the admitted physical facts in the case that had respondent’s driver continued eastward on the south side of the road the car in which appellants were riding would have passed to his left; that the apparent danger in so doing was not real, and that the attempt of respondent’s driver to pass to the left of appellant’s car, instead of to the right, was the proximate cause of the collision. A traveler may occupy and use any part of the road he desires when not needed by' another whose rights are superior to his own. When he meets another traveler the statute above quoted requires him to turn to the right, if practicable, and to give the other an opportunity to pass, in obedience to the law, by turning to his right. If he is so near the right-hand side of the road as to make it impracticable to turn to the right, he is not required to do so; he may hold his position. Nothing in the statute will justify hjm in turning to the left. If he does so he thereby violates its plain provisions. The decisions are not uniform on the question here' presented. A number of courts adhere to the theory that although a traveler was injured as a direct result of his violation of “the law of the road” if, in violating it, he acted as an ordinarily prudent and careful person would have done under the circumstances, he is not thereby precluded from recovering. (Riepe v. Elting, 89 Iowa, 82, 48 Am. St. 356, 56 N. W. 285, 26 L. R. A. 769; Hubbard v. Bartholomew, 163 Iowa, 58, 144 N. W. 13, 49 L. R. A., N. S., 443; Molin v. Wark, 113 Minn. 190, 129 N. W. 383, 41 L. R. A., N. S., 346; McFern v. Gardner, 121 Mo. App. 1, 97 S. W. 972.) On the other hand, much authority may be found supporting the doctrine that recovery for damages sustained cannot [779] be had by one whose violation of the law was the proximate cause of his injury. (Lloyd v. Calhoun, 82 Wash. 35, 143 Pac. 458; Broschart v. Tuttle, 59 Conn. 1, 21 Atl. 925, 11 L. R. A. 33; Winter v. Harris, 23 R. I. 47, 49 Atl. 398, 54 L. R. A. 643; Angell v. Lewis, 20 R. I. 391, 78 Am. St. 881, 39 Atl. 521; Newcomb v. Boston Protective Department, 146 Mass. 596, 4 Am. St. 354, 16 N. E. 555; Brooks v. Hart, 14 N. H. 307; Palmer v. Barker, 11 Me. 338; Brooks v. Thomas, 17 Phila. 45; Earing v. Lansingh, 7 Wend. (N. Y.) 185.) The statute here under consideration was enacted as a rule to govern our conduct while using the public highways. Such rule is an exercise of the police power and peculiarly within the province of the legislature. The purpose was to avoid the congestion, confusion, delay and disaster which would inevitably result from permitting each traveler to use his own judgment as to what part of the highway he should occupy and what part he should accord to others. « When a court, in view of the legislation on this subject, says a traveler on the public highway may, on meeting another, turn to the left instead of to the right, if, in so doing, he acts as an ordinarily prudent and careful person would have acted under the circumstances, it invades the province of the legislature, amends the statute and defeats its purpose. Should we adopt that rule, we must assume that an ordinarily prudent and careful person would violate the law, which he would not, and we must also, without going one step further into the realm of the ridiculous, hold that if ho -does not so violate it he will, under such circumstances, be guilty of negligence and may be liable for damages proximately resulting from his failure to do so. We express no opinion as to the right of appellant, Herth, to recover for the damage mentioned in his cross-complaint. The order appealed from is reversed. Costs are awarded to appellants. Rice, J., concurs.