Kidd v. Gardner Associated, Inc.

TAYLOR, Justice. Plaintiffs (appellants) brought this action to recover damages for personal injuries sustained by Zula and Susan Kidd resulting from a collision between a pickup truck driven by plaintiff Zula Kidd and a pickup truck driven by defendant (respondent) Clark R. Gardner and owned by defendant (respondent) Gardner Associated, Inc. During the course of trial the claim for damages for personal injuries to Susan Kidd was abandoned by plaintiffs. The jury returned its verdict in favor of the defendants on the claim for damages to plaintiff Zula Kidd, and plaintiffs appealed. The accident occurred in Madison County-on July 7, 1965, at the “Weeks Corner” intersection of a two-lane north-south road (Archer Road) and a one-lane east-west road. Archer Road was at the time under reconstruction from the intersection north. From the intersection to the south there was no public road in existence at the time of the accident. At that time traffic going south on Archer Road turned east at this intersection on the road upon which Mrs. Kidd was approaching the intersection from the west. A part of the work being done by defendant Gardner Associated was to construct a new road from the intersection extending south down to the South Fork of the Snake River, where a bridge was to be constructed rxross the river. The sheriff, who, together with his deputy, made an investigation at the scene of the accident, re — 550 — ferring to the road being constructed to the south, testified: “Q And do you recall how close to the west edge of the road it was where the vehicle had been traveling south? '• '“A Well, going by this diagram, it 'would be six inches from the edge of ■ the road. That wasn’t much of a road ■on that end of it. That was just made ;passable for these trucks because it had "been opened up just at the time that these people started hauling gravel out of there. “Q That had been for some time though, hadn’t it? “A Well, that summer. I don’t recall when it was opened. I lived there all my life and that road was never there until these people started hauling gravel out of there and that was just a few months prior to this accident.” On the south side of the intersection and on each side of the opening where the trucks entered and left the intersection two barricades had been set up, one on the east and one on the west of the opening, bearing the words, “ROAD CLOSED” and “DETOUR” and a black painted arrow pointing to the east, thus directing traffic moving south on Archer Road not to enter upon the extension being constructed to the south, and to turn to the east. The width of the traveled portion of Archer Road north of the intersection was 21 feet. Part of the construction involved widening of the traveled portion to 32 feet. The width of the east-west road was not shown by the record, except that where it crossed ditches on bridges it was not wide enough for two cars to pass. The surface of both roads at the intersection was gravel. There was a bridge over a ditch which crossed the east-west road on the west side of the intersection. This bridge was estimated to have been located five to fifteen feet west of the west side of Archer Road at the intersection. Zula Kidd was driving a pickup truck east on the one-lane road, her daughter Susan accompanying her as a passenger. Clark Gardner was driving a pickup truck south on Archer Road. Mrs. Kidd testified that the road upon which she was traveling was a county road. Whether she was qualified to so testify was not tested upon cross-examination and her testimony on this point was not refuted. Upon being asked as to the speed at which she had been traveling along the one-way road toward the intersection, Mrs. Kidd testified: “A It is a winding road and I wasn’t going very fast. About five or ten miles an hour.” In describing her approach to the intersection and the accident Mrs. Kidd further testified: “Q Now, did you — what did you do as you approached this intersection? “A As I approached the intersection, I slowed up and came to a near stop at the bridge and reasonably where I could look out to the road to see if there was anything coming, and I couldn’t see anything, so, I eased out into the intersection. “Q Did you do anything as to the manipulation to the car? “A I put on the brakes and shifted into low. “Q You shifted gears on the truck? “A Yes.” Clark Gardner testified that as he was proceeding south on Archer Road he estimated his speed to be around 30 miles an hour; that the road was under construction and was in a rough condition; and further: “Q Where were you on the road ? What was your position, the position of your vehicle at the time that you first observed Mrs. Kidd? “A Well, I was in the intersection and I just noticed out of the corner of my eye that there was another vehicle right there coming across that bridge and that’s when I first became aware that she was there. — 551 — * Jji ‡ Hi * “Q Did you have an opportunity to observe the speed at which Mrs. Kidd was traveling? “A The only observation that I would be able to make would be when I saw her that I knew a collision was imminent and that there was nothing that I could do really to avoid it at that time. “Q Well, was she going in your opinion slow, fast, or what miles per hour? “A Well, I think she was going faster than 10 miles an hour. “Q Did you have any opportunity or any time to do anything or did you do anything to avoid the collision ? “A I didn’t have time to do anything. It was a matter of a second, just a look and there it was. * * * * * * “Q Do you recall whether or not you had seen Mrs. Kidd in time to apply your brakes ? ****** “A I didn’t have time to put on the brakes, no.” Mr. Gardner did not testify that he slowed his speed on approaching or entering the intersection. The sheriff testified that the Gardner truck left about four feet of skid marks. Mrs. Kidd’s vehicle left eight feet of skid marks. Both trucks suffered extensive damage and Mrs. Kidd was severely injured. At the time of the accident defendant Gardner Associated, Inc. was employed in the reconstruction of Archer Road in the general vicinity of the intersection. Vehicles belonging to the company were hauling materials to a point near the intersection, and in so doing crossed the intersection at frequent intervals. The contract between Gardner Associated and the prime contractor required Gardner Associated to “provide and maintain proper warning signals, signs, lights, barricades and fences on and along the line of said work, and shall take all other necessary precautions for the protection of the work and safety of the public.” It was admitted that at the time of the collision there was no stop or truck-crossing sign to warn the public traveling' on the east-west road of the construction-activity on the north-south road. Gardner" Associated claimed that ordinarily a portable warning sign was maintained at the intersection and that the construction area was checked periodically to insure that the sign had not been removed. Clark Gardner was employed at the time by Gardner Associated, Inc. as a superintendent on the project. At the time of the accident he was driving from the construction site to the loading area from which materials were being taken for the construction, and was acting in furtherance of his job of overseeing the construction work. There was evidence tending to show Mrs. Kidd, who lived within five miles of the intersection, knew that construction was going on in the general area. It was shown by the evidence that the view of a driver approaching the intersection from either direction was obstructed by buildings* fences, weeds, and other growth so that neither driver could see vehicles approaching the intersection on the other road. The-day was sunny and clear and the roads, were dry. Plaintiffs brought this action asserting liability on the part of Clark Gardner on the ground of negligence in his operation of the pickup truck driven by him, and asserting the liability of Gardner Associated, Inc. as owner of the pickup- driven', by Clark Gardner under the doctrine of respondeat superior, and also that Gardner-Associated was liable on the ground of its-negligence in failing to maintain warning-signs at the intersection. The defendants-denied any negligence on their part and' alleged contributory negligence on the part-of Mrs. Kidd as a proximate cause of the-accident. Plaintiffs assign as error the following instruction No. 25 given by the trial court r “Ladies and gentlemen, you are instructed that the law of the State of — 552 — Idaho governing the movement of traffic as included in the previous instructions do not apply to persons, motor vehicles and other equipment while such persons, motor vehicles or other equipment are actually engaged in work upon the surface of a highway, but do apply to such persons when travelling to and from such work.” This instruction was based upon the provisions of I.C. § 49-525(b), which is as follows: “(b) Unless specifically made applicable, the provisions of this act shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work upon the surface of a highway but shall apply to such persons and vehicles when traveling to or from such work.” “[T]his act” refers to S.L.1953, ch. 273, compiled in Idaho Code as §§ 49-501 to 49-846 and 49-1001 to 49-1126, including ch. 7 of Title 49, covering “OPERATION OF VEHICLES — RULES OF THE ROAD.” Other modifying instructions given by the court are set out in the footnote.1 At the time of the accident Clark Gardner was driving the defendant’s pickup truck from the construction site, where “subgrade” was being dumped, to the place where the material was being loaded. Concededly he was acting within the scope of his employment as supervisor of the road construction in traveling from point to point. However, he was not “actually engaged in working upon the surface of * [the] highway.” He was actually “traveling to or from such work,” that is, to and from the place where the work on the surface of the highway was being performed. He, therefore, was not acting within the exemption granted by the foregoing I.C. § 49-525(b), but was at the time subject to the statutory rules of the road. The court erred in giving instruction No. 25 and in submitting to the jury the supposed issue as to whether or not Clark Gardner was at the time subject to the rules of the road. The error was prejudicial and requires reversal of the judgment and a new trial. In Pree v. Hymbaugh, 23 Ill.App.2d 211, 162 N.E.2d 297 (1959), the appellate court of Illinois held that the driver of a truck loaded with gravel which was to be spread upon a road several miles distant from the scene of an accident was not exempted from the rules of the road by a statute — 553 — similar to ours, “Since defendant was not then actually engaged in work upon the surface of the highway”. Under a statute similar to our I.C. § 49-525(b), the California District Court of Appeals in Gonsalves v. Petaluma Building Materials Company, 181 Cal.App.2d 320, 5 Cal.Rptr. 332 (1960), held that the driver of a water truck in making a turn or loop in a cross-over between the lanes of a four-lane divided highway to resume work on the southbound lanes, had ceased to be “actually engaged in work upon the surface of the road” and had commenced “traveling to * * * such work.” In McNabb v. DeLaunay, 223 Or. 468, 354 P.2d 290 (1960), the Oregon Supreme Court concluded that a statute similar to our I.C. § 49-525 (b) exempted the driver of a truck who had just delivered a hot load of asphalt to a patching crew and was turning around within the area between two flagmen when struck by a car driven by plaintiff’s host, who for failure to keep a lookout did not see the flagman. Appellants also assign as error the refusal of the court to give their requested instruction No. 6 as follows: “You are.hereby instructed that if you find that defendant, Clark R. Gardner’s view of the intersecting highway was obstructed over the course of at least the last 100 feet of his approach to the intersection then you must find that it was his duty to drive at such an appropriate reduced speed and have his car under control, that he could slow down or stop as need be, when he reached a point where he could see a vehicle approaching from his right in such proximity as to give rise to the hazard of a collision should he proceed.” The record conclusively establishes that the view of both drivers was obstructed so that neither could see the other as they approached the intersection and until they reached the immediate vicinity of the intersection. At the intersection involved there were no posted signs or other traffic controls and neither road was a through highway. The court gave to the jury the applicable subparagraphs (a) and (b) of I.C. § 49-727, the latter giving the right of way to the driver on the right. The court also gave to the jury the applicable portions of I.C. § 49-701, including the provisions of subparagraph (c) requiring driver to drive at an appropriate reduced speed when approaching and entering an intersection. In Coughran v. Hickox, 82 Idaho 18, 348 P.2d 724 (1960), a similar case arising out of an intersection collision, we held that the general instructions covering the duties of the respective drivers under the statute were not sufficiently explicit where the view of the drivers was obstructed, as in this case, and that the plaintiff (situated as was Mrs. Kidd in this case) having requested an instruction defining the statutory phrase, “at approximately the same time” (as used in I.C. § 49-727) was entitled to have such instruction given. We further held in that case that: “If defendant was observing traffic regulations he was entitled to assume that plaintiff was traveling at a lawful rate of speed and that he would approach the intersection at ‘an appropriate reduced speed.’ If defendant was observing traffic rules and the collision was proximately caused by failure of plaintiff to obey traffic regulations, then it follows that plaintiff would not be protected by the right of way statute. “Having in mind the fact that defendant’s view of the intersecting highway on his right was obstructed over the course of the last 100 feet of his approach to the intersection, it was his duty to drive at such ‘an appropriate reduced speed,’ and have his car under such control, that he could slow down or stop as need be, when he reached a point where he could see a vehicle approaching from his right in such proximity as to give rise to the hazard of a collision should he proceed. I.C. § 49-701; Walkup v. Bardsley, 8 Cir., Ill F.2d 789. If plaintiff was observing traffic regulations he was entitled to assume that defendant would approach the intersec — 554 — tion and slow down or stop in compliance with his duty as above stated. “If the jury found these issues of fact as to compliance or noncompliance with traffic regulations in favor of the plaintiff, then the plaintiff was entitled to have the benefit of the statute giving him the right of way.” 82 Idaho at 26, 348 P.2d at 729. Thus it was held that the duties of the respective drivers in approaching the intersection were reciprocal. The duty of Mrs. Kidd was covered, somewhat repetitiously, in instructions 30, 31, 32, 35 and 37. The duty of Clark Gardner was given in general terms, but his specific duty, occasioned by the obstruction of his view of the road on which Mrs. Kidd was approaching, was not given. That specific «■duty was stated in the requested instruc'.fian and should have been covered. Such -an instruction was of considerable importance to plaintiff because the court’s instruction No. 372 erroneously tended to «excuse .any excessive speed or other negligence nn the part of Clark Gardner, in his .approach to the intersection. J3J It should be noted here that the law applicable in case of obstructed view does not depend upon the distance over which '.the driver’s view is obstructed. Whether it be 100 feet, or more or less than 100 ■feet, the distance is important only as a •factor to be considered in determining the ■degree of caution to be required of an approaching driver. As to the reciprocal duty of drivers as • affected by obstructed view, see: Smith v. Squire, 119 Vt. 59, 118 A.2d 355 (1955); Brown v. Gallipeau, 116 Vt. 290, 75 A.2d 694 (1950); 3 Blashfield, Automobile Law & Practice, § 114.40. Lastly, plaintiff assigns as error certain comments, or oral instructions, given by the court during the course of the trial. Referring to the contract between Gardner Associated and the prime contractor which plaintiff had put in evidence, the court said: “I think that this is a good time to instruct the jury that this is not a contract action and it is immaterial to you whether or not this contract was lived up to or whether it was violated. That’s not your problem, that would be a problem with the contractees, the people who made the contract, but this contract may help to indicate to you something about whether or not the parties were negligent in not doing or in doing some of the things they did. In other words, sometimes the party doesn’t do something because he doesn’t know it should be done. He is not negligent even though other parties realize it should be done. This contract may help to establish that he knew that it should be done. That’s the only reason I’m introducing it, the only reason I am permitting it to be introduced * * [Emphasis added.] “Now, Ladies and Gentlemen, I am going to admit this Exhibit and you can take into the Jury room with you along with other exhibits and read it over. I have already talked to Counsel about this matter and I have told them and I am now telling you that size of the signs and the exact nature and so on is not important. I don't care whether the signs they put up are just like the signs in this contract or not and I instruct you — 555 — that you can’t find any negligence on account of the signs being different because the sign wasn’t there anyhow. So, the negligence would have to be in its not being there, not in what size it was because we don’t know what would have happened if it had been there regardless of the size. Maybe it would’t have made any difference.” [Emphasis added.] The italicized words are particularly objected to. It is true as the court observed that this is not an action on the contract, and plaintiff’s right to recover does not depend upon performance or breach of the contract by defendants. Davis v. Nelson-Deppe, Inc., 91 Idaho 463, 424 P.2d 733 (1967). However, the comments were not accurate statements of the propositions of law involved. While we do not hold these statements reversible error, it would have been preferable to have covered the points by written instructions. The evidence does not establish negligence on the part of Mrs. Kidd, as a matter of law. Contributory negligence was an issue for resolution by the jury. Therefore, we cannot say that the errors committed were harmless. Judgment reversed and the cause is re-amended for a new trial. Costs to appellants. SMITH, C. J., and McFADDEN and SPEAR, JJ., concur. Footnotes [1] “Instruction No. 24. You ave instructed, that a contractor engaged in the repair or improvement of a public highway open to public travel during the time the work is going on has the right to obstruct public travel thereon, but must exercise that right with due regard to the subservient right of the public to use the highway.” “Instruction No. 26. Ladies and gentlemen, you are instructed that although by law the rules of the road as established by Idaho Statutes do not apply to persons or vehicles engaged in work upon the surface of the highway, nevertheless, this provision does not give to such persons- a license to act without regard to the rights or safety of others nor to disregard a rule of the road without any good reason for doing so and when an ordinary reasonable and prudent person under the same circumstances would not have done so.” “Instruction No. 27. Ladies and gentlemen you are instructed that if you find Clark Gardner to have been engaged in working upon the surface of the highway at the time of this accident, you are instructed that he was nevertheless under a duty to exercise reasonable care to avoid injury to others.” “Instruction No. 28. Ladies and gentlemen, you are instructed that if you believe Clark Gardner was not subject to the rules of the road because of working upon the surface of the road at the time of the accident, nevertheless, if you believe that a reasonable person acting under the same circumstances and conditions would have yielded the right-of-way to the plaintiff in this case you may find Clark Gardner negligent for not having done so. “It is, also, true that if you find that a reasonable person, acting under the same circumstances as Clark Gardner, would have felt that he was traveling at an excessive and unreasonable rate of speed then you may find the speed at which Clark Gardner was traveling to have been unreasonable and negligent.” [2] “Ladies and gentlemen, if Mrs. Zula Kidd approached the intersection and noted that Clark Gardner’s car was, also, approaching the intersection from another highway, but if she was aware or should Lave been aware, also that he was driving at such a speed or in such a manner that he would not be able to stop short of a collision if she entered the highway, then her entering the highway simply because slie bad the right-of-way was an act of negligence and would deprive her of the right to any recovery. Although the defendant under these circumstances would have been negligent and unable to recover from plaintiff, Mrs. Kidd would, also, have been unable to recover because she would have been negligent.