Paula Jean Johnston and Kerrie Jean Johnston, an Infant, by Paula Jean Johnston, Her Guardian Ad Litem v. Pierce Packing Company and Thomas C. White

550 F.2d 474 Paula Jean JOHNSTON and Kerrie Jean Johnston, an infant, by Paula Jean Johnston, her guardian ad litem, Plaintiffs-Appellants, v. PIERCE PACKING COMPANY and Thomas C. White, Defendants-Appellees. No. 74-2184. United States Court of Appeals, Ninth Circuit. March 9, 1977. Lloyd J. Webb, Roger S. Burdick, Webb, Pike, Burton & Carlson, Twin Falls, Idaho, Paula Jean Johnston, D. Brent Martens, Buhl, Idaho, for plaintiffs-appellants. Stanley E. Gardner, Berkley, Vaughns, Rhodes & Sherrod, Oakland, Cal., for defendants-appellees. Appeal from the United States District Court for the District of Idaho. Before KOELSCH, HUFSTEDLER and CHOY, Circuit Judges. CHOY, Circuit Judge: 1 Plaintiffs appeal in this diversity action from an adverse judgment entered upon a jury verdict. They assign as error the failure of the trial court to give two jury instructions requested by them. We affirm. 2 Appellants Paula and Kerrie Johnston, the widow and child of Ronald Johnston, brought this action under the Idaho Wrongful Death Statute, Idaho Code § 5-311 , against Pierce Packing Company and its driver, Thomas C. White. They claimed damages for Ronald Johnston's death which…

Plaintiffs appeal in this diversity action from an adverse judgment entered upon a jury verdict. They assign as error the failure of the trial court to give two jury instructions requested by them. We affirm.

Appellants Paula and Kerrie Johnston, the widow and child of Ronald Johnston, brought this action under the Idaho Wrongful Death Statute, Idaho Code § 5-311 , against Pierce Packing Company and its driver, Thomas C. White. They claimed damages for Ronald Johnston’s death which resulted from an accident involving a truck driven by White for Pierce Packing. The jury returned a special verdict, finding that Johnston and White had each been fifty percent negligent in causing the collision. Under Idaho’s comparative negligence statute, Idaho Code § 6-801 , appellants recovered nothing.

Johnston died when the truck and trailer he was driving crashed into another rig being operated by White at about 3:45 a. m. on the morning of October 8, 1972. Both vehicles were travelling south in the outside lane of a four-lane stretch of Interstate 15 near Pocatello, Idaho. White had stopped on the emergency strip adjoining the highway and had just reentered the travel lane and attained a…

dissenting:

The failure of the district court to instruct the jury on the presumption of due care and the absence of an intelligible instruction upon the defendant’s burden of proving the decedent’s negligence require reversal and a new trial. The majority opinion assumes that Idaho gives a trial judge broad discretion to decide whether to instruct a jury upon the presumption of due care and that Idaho does not disturb that exercise of discretion if any evidence contradicting the presumption has been presented. The majority’s reasoning is plausible, but it is not the law of Idaho.

Neither the decision that the presumption has arisen, nor the decision that the presumption, once it has arisen, has been dispelled is a matter of discretion. 1 Idaho cases on the propriety of invoking the presumption are not a model of clarity. Indeed they indicate a confusion on the part of the Idaho courts as well as the majority opinion between (1) situations in which no presumption of due care arises; and (2) those in which the presumption has already arisen and the question is whether the presumption has been dispelled. Because these two situations rely on different theoretical underpinnings,…