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LARUE v. ARCHER6/11/1997
of the instructions to the jury, LaRue argued that instruction no. 12A, as proposed by the court, was defective. Instruction No. 12A reads:
There was in force in the State of Idaho at the time of the occurrence in question, a traffic statute which provided that:
The driver of a vehicle may overtake and pass upon the right of another vehicle only under the following conditions:
(a) when the vehicle overtaken is making or about to make a left turn;
(b) upon a highway with unobstructed pavement for sufficient width for two or more lines of vehicle moving lawfully in the direction being traveled by the overtaking vehicle.
The driver of the vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety.
A violation of the statute constitutes negligence unless compliance with the statute was impossible.
This instruction essentially tracks the language of I.C. § 49-633. However, it omits the last line of subparagraph two of the statute. Subparagraph two in its entirety reads that:
The driver of the vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. That movement shall not be made by driving off the roadway.
LaRue asserts that the instruction read by the trial court was defective because it omitted the last sentence, "That movement shall not be made by driving off the roadway." LaRue contends that because of the defect in the instruction, the jury was allowed to erroneously presume that any time a driver passes on the right, the driver is negligent per se and such a driver is the one who must yield. LaRue also contends that sufficient facts were produced at trial to support her allegation that she did not drive off of the roadway.
The district court held that addition of the last line of I.C. § 49-633(2) would confuse the jury, and that there was not an issue before the jury of passing on the right beyond the surface of the roadway. We agree. We hold that jury instruction no. 12A fairly and accurately reflected the applicable law.
C. Cumulative Error.
Finally, LaRue submits that the cumulative effect of the district court's erroneous rulings deprived her of a fair trial. She argues that as a result the district court committed reversible error. While this Court has recognized the doctrine of cumulative error, State v. Larsen, 123 Idaho 456, 459, 849 P.2d 129, 132 (Ct.App. 1993); State v. Campbell, 104 Idaho 705, 719, 662 P.2d 1149, 1163 (Ct.App. 1983), a necessary predicate to application of the doctrine is a finding of error in the first instance. State v. Blackstead, 126 Idaho 14, 23, 878 P.2d 188, 197 (Ct.App. 1994); Reynolds v. State, 126 Idaho 24, 32, 878 P.2d 198, 206 (Ct.App. 1994). As discussed above, we have reviewed each of the alleged errors and the record as a whole and have concluded that the district court committed no error. Thus, there can be no cumulative error.
IV. CONCLUSION
The district court did not err in ruling on the admissibility of the evidence as to the traffic citation. The district court did not err by refusing to give LaRue's proposed instruction No. 30, and the court did not err by giving instruction no. 12A.
The judgment is affirmed. Costs are awarded to respondent, no attorney fees on appeal are awarded.
LANSING and PERRY, JJ., concur.
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