Kleinschmidt v. Scribner , 54 Idaho 185 ( 1934 )

As pointed out in the foregoing opinion, exhibit "E," the admission in evidence of which is treated as prejudicial error, purports to be a copy of the original map and accident report of which exhibit "D," introduced in evidence without objection, is a carbon copy. Exhibit "E" does not prove anything which is not established by exhibit "D."

It is stated in the foregoing opinion:

"From a comparison of exhibits 'D' and 'E' it is immediately apparent that the plat on the carbon copy, exhibit 'D', and the plat on the purported certified copy, exhibit 'E', are not the same, but contain several discrepancies of varying degree upon questions that were more or less material to the issues involved, and we therefore cannot say that the admission of exhibit 'E' may not have been prejudicial to appellant."

It is not stated in the opinion what these "discrepancies" are, nor what any of them is, nor upon what "questions they were more or less material to the issues involved." I am unable to find any material difference in these exhibits and feel certain, if difference exists, it would have been pointed out by appellant to whose advantage it would be to show it. In the absence of a difference in these maps, which resulted in disadvantage to appellant, the introduction of exhibit "E," although not properly certified, is not prejudicial error, because it shows nothing not shown by exhibit "D," which had been introduced without objection.

Instruction numbered 7 is erroneous because the jury probably inferred from the language, "outside of business or residence districts and except as above limited, it is lawful to drive at a speed not exceeding forty-five miles per hour," that it is unlawful to drive at a speed exceeding forty-five miles per hour outside of such districts and except as so limited. However, the error was invited by defendant's requested instruction numbered 2, which was erroneous for the same reason instruction numbered 7 was, as will be seen by reading the instruction which was given and the one which was requested.

Instruction numbered 7, omitting parts which have no bearing on the question before us, is as follows:

"You are instructed that since the accident or collision which is the subject of this case, occurred in the State of Oregon, the rights, duties and liabilities of the parties to this action must be determined by and under the laws of the State of Oregon.

"You are further instructed the laws of the State of Oregon, among other things provide: . . . .

"That no person shall drive a vehicle upon a highway at a speed greater than is reasonable and prudent, having due regard to the traffic, surface and width of the highway and the hazard at intersections and any other conditions existing.

"That no person shall drive at a speed which is greater than will permit the driver to exercise proper control of the vehicle and to decrease speed or to stop, as may be necessary, to avoid colliding with any person, vehicle or other conveyance entering the highway in compliance with legal requirements and with the duty of drivers and other persons using the highway to exercise due care.

"That outside of business or residence districts and except as above limited, it is lawful to drive at a speed not exceeding forty-five miles per hour. . . . ."

Requested instruction numbered 2 is as follows:

"You are instructed that under the laws of the State of Oregon, it has a so-called 'Basic Rule' in regard to speed under circumstances such as are involved in this case, the applicable part of such rule to this section, being as follows:

"No person shall drive a vehicle upon a highway at a speed greater than is reasonable and prudent, having due regard to the traffic, surface and width of the highway and the hazard at intersections and any other conditions existing.

"Nor shall any person drive at a speed which is greater than will permit the driver to exercise proper control of the vehicle and to decrease speed or to stop as may be necessary to avoid colliding with any person, vehicle or other conveyance upon entering the highway in compliance with legal requirements and with the duty of drivers and other persons using the highway to exercise due care; provided that this provision shall not be construed to change the rules of pleading and evidence relating to negligence and contributory negligence.

"The indicated speed under the laws of the State of Oregon under its basic rule, outside of a business or residence district, and in a locality such as that where the plaintiff here was injured, is forty-five miles per hour."

The law of Oregon, agreed by the parties to be applicable to this case, is set out in the foregoing opinion and it is clear therefrom that it is unlawful in that state to drive on a highway at a speed greater than is reasonable and prudent, having due regard to the traffic, surface and width of the highway and the hazard at intersections and any other conditions then existing. It prohibits driving at a speed that is greater than will permit the driver to exercise proper control of the vehicle and to decrease speed or to stop as may be necessary to avoid colliding with any person, vehicle or other conveyance on entering the highway in compliance with legal requirements and with the duty of drivers and other persons using the highway to exercise due care.

The foregoing is the substance of what is referred to in Oregon as the "basic rule" and subd. (a) of the law fixes the penalty for a violation thereof at a fine not to exceed $25, or imprisonment not to exceed 5 days, or both such fine and imprisonment, unless it is violated under conditions stated in subd. (b).

Subdivision (b) provides that any person who drives a vehicle on a highway at a speed in excess of that indicated in the law for the particular district or location and who, while so driving, violates the basic rule shall, upon conviction, be punished by a fine not exceeding $100, or by imprisonment not exceeding ten days, or by both such fine and imprisonment. Then is set out the speed the driving of which, when accompanied by a violation of the basic rule, shall bring upon the offender the increased penalty. It is, in part, as follows:

"4. Forty-five miles per hour; Outside of business or residence district, except as otherwise limited by this act."

It will be observed that it is not speed which constitutes a violation of the law, so long as it is not greater than is reasonable and prudent, but that excessive speed occurring with a violation of the law, increases the penalty.

The jury was not concerned with the penalty for appellant's violation of the traffic laws of Oregon, if he violated them. It was concerned in whether he was driving his automobile in that state in violation of its traffic laws and, if he was, whether his doing so was the proximate cause of respondent's injury.

It was appellant's contention, supported by his evidence, that he was not driving to exceed 40 miles per hour at the time of the accident. No doubt the erroneous part of instruction numbered 2 was requested, and the erroneous part of instruction numbered 7 was given, on this theory.

In that request appellant asked the court to instruct the jury that Oregon "has a so-called 'Basic Rule' in regard to speed under circumstances such as are involved in this case, . . . . The indicated speed under the laws of the State of Oregon under its basic rule, outside of a business or residence district, and in a locality such as that where the plaintiff here was injured, is forty-five miles per hour."

That language is incapable of other interpretation than that, outside of business or residence districts, it is lawful to drive at a speed not exceeding forty-five miles per hour, which is what the court told the jury in instruction numbered 7, and about which appellant is complaining.

One who invites error should not be heard to complain of it. (Gaskill v. Washington Water Power Co., 17 Idaho 128,105 P. 51; Trask v. Boise King Placers Co., 26 Idaho 290,142 P. 1073; Dover Lumber Co. v. Case, 31 Idaho 276, 170 P. 108;Walling v. Walling, 36 Idaho 710, 214 P. 218; Mathers v.Mathers, 42 Idaho 821, 248 P. 468; Frank v. Frank, 47 Idaho 217,273 P. 943; Applebaum v. Stanton, 47 Idaho 395,276 P. 47.)