Anderson v. Parson Red-E-Mix Paving Co.
| Decision Date | 26 March 1970 |
| Docket Number | No. 11746,RED-E-MIX,11746 |
| Citation | 467 P.2d 45,24 Utah 2d 128 |
| Parties | d 128 Betty ANDERSON, guardian ad litem of David Patrick Anderson, Plaintiff and Appellant, v. PARSONPAVING COMPANY, Inc., a Utah corporation, and Max E. Green, et al., Defendants and Respondents. |
| Court | Utah Supreme Court |
Dale M. Dorius, Brigham City, for plaintiff and appellant.
Raymond M. Berry, of Worsley, Snow & Christensen, Salt Lake City, for defendants and respondents.
Betty Anderson, as guardian of her 15-year-old son David, sues for injuries he suffered when a car in which he was riding as a guest ran into the rear of the defendant's truck which was standing on Fourth North Street just west of Main Street in Brigham City. After the presentation of the plaintiff's evidence the trial court granted defendant's motion to dismiss on the grounds: (a) that it failed to show the defendant was negligent; and (b) that the sole proximate cause of the collision was the negligence of plaintiff's host-driver.
In reviewing the ruling of the trial court that it appears as a matter of law from the plaintiff's own evidence that there is no cause of action established against the defendant, we are obliged to survey it in the light most favorable to the plaintiff. 1
Shortly after 4:00 p.m. on April 22, 1966, defendant's driver Max E. Green, had delivered a load of Red-E-Mix concrete to a Phillips 66 Station on the northwest corner of Fourth North and Main Street in Brigham City. After unloading he drove the truck about 150 feet west and stopped on the north edge of Fourth North Street. Mr. Green got out and mounted a platform on the truck and was engaged in washing it out when this incident occurred. Meanwhile Kim Mortenson, a 15-year-old boy, who had taken an automobile without leave, was proceeding northward on Main Street with two other boys of the same age as passengers, Mark Herbert, in the front seat, and plaintiff in the rear seat.
We accept what plaintiff says in his brief as a statement of the essential aspects of the occurrence in the light most favorable to him:
As he approached Fourth North he pulled into the left turn lane * * * stopped and waited for traffic coming from the north * * *. had just started a left turn when Mark Herbert warned the driver to accelerate in order to avoid collision with a vehicle which he had failed to see coming from the north. In response * * * Mortenson over-accelerated and the car began to slide on some loose material on the road surface. While he was thus proceeding west with the rear end in a sideways slide and approximately 50 feet west of the curb line, he first noticed the defendant's truck parked on the roadway. The driver at that point had sufficiently regained control and he thought that he could avoid collision by proceeding to the southwest and around the left side of the truck, but he failed to observe the steel chute extending to the rear and * * * collided with the extended chute, which penetrated the right hand side of the vehicle * * * (which caused plaintiff's injuries). (Emphasis added.)
It is the plaintiff's contention that, conceding negligence on the part of his host-driver Kim Mortenson, he may nevertheless recover against the defendant for negligence in the parking of its truck as a concurring proximate cause of his injuries, citing Hillyard v. Utah By-Products Co. 2 In that and other cases we have indicated our agreement with the well established rule that where one is injured by the concurrent negligence of two wrongdoers he can recover from either or both; 3 and this includes circumstances where one has previously created a dangerous condition, which combines with a later act of negligence, if the former is in fact a concurring proximate cause. But this is not so if the previously created dangerous condition is such that the later actor, in...
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