Atwood v. Utah Light & Railway Co.

• Decision Date: 23 April 1914
• Docket Number: 2560
• Citation: 140 P. 137,44 Utah 366
• Parties: ATWOOD v. UTAH LIGHT & RAILWAY COMPANY
• Court: Utah Supreme Court

140 P. 137

44 Utah 366

ATWOOD v. UTAH LIGHT & RAILWAY COMPANY

No. 2560

Supreme Court of Utah

April 23, 1914

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Ione Atwood against Utah Light & Railway Company.

Judgment for Plaintiff. Defendant appeals.

AFFIRMED.

P. L Williams, George H. Smith and H. B. Thompson for appellant.

Powers Marioneaux, Stott & McKinney for respondent.

FRICK J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

The plaintiff brought this action to recover damages for personal injuries which she claimed were sustained through the alleged negligence of the defendant. The plaintiff, an unmarried woman of thirty-six years of age at the time of the accident, was riding in a topless single-seated buggy with one Samuel J. Lindsay, thirty years of age, and with her sister. They were driving north on State Street and south of the corporate limits of Salt Lake City on the evening of June 14, 1912, between eight and nine o'clock. The horses were owned by Mr. Lindsay and were hitched to the buggy, and he was driving them. Mr. Lindsay, it appears, was a capable driver, having had much experience in driving and handling horses. All three were sitting on the one seat, the two women on the seat proper, while Mr. Lindsay "was sitting on the girls' knees." State Street is macadamized for several miles south of the city limits, and at the time of the accident the defendant had laid a one-track street car line which it operated by moving cars thereon between Salt Lake City and Murray, which is some five or six miles distant from the southern limits of Salt Lake City. Lindsay was driving north on the east side of the car track until after he had met and passed a street car which was running south. As this car approached the team, the horse nearest the car shied at the approaching and passing car, and after it had passed the buggy Lindsay drove across to the west side of the car track. The car track was laid to the east of the center of State Street, so that the traveled portion of the street on the east side of the track was about eighteen or twenty feet, while the roadway west of the track was approximately forty feet wide. The north-bound travel on the street was, as a general thing, on the east side of the track, while the vehicles going south proceeded on the west side thereof. Immediately after the car going south had passed Lindsay, he noticed a car coming from the south. This car, however, was still some distance to the south, and Mr. Lindsay testified that he drove across to the west side of the street because the horse hitched on the west side had shown a disposition to shy at the street car, and hence he wanted to place the other horse, which was not afraid of street cars, between the car coming north and the horse that had shied, with the view of preventing the horse from shying again. He was driving on a sharp trot parallel with the street car track and some few feet distant therefrom when the street car was about to overtake him. The occupants of the buggy say the street car was being operated at a fast rate of speed, and, when still some distance to the south, the motorman blew the whistle and afterwards sounded the bell or gong from time to time as the car approached nearer the buggy. Just before the street car was about to pass the horses and buggy, the horse on the west side seemed to become frightened for some cause, and, with his head down, crowded the horse on the east side over towards and so near the track that the front post of the street car, while missing the buggy, nevertheless struck the horse on the east side, knocking him down, which caused the buggy to upset, and Lindsay fell out of the buggy, and the plaintiff was likewise thrown therefrom and from the fall sustained the injuries complained of. Plaintiff was riding on the west side of the buggy seat; her sister on the east; and Lindsay was sitting on their knees, as before stated. There was nothing that prevented Mr. Lindsay from driving farther to the west on the west side of the street. It seems the women were without fear, and apparently had no thought that there was any danger in driving along as they did, except such as might arise in case Lindsay drove too near the street car track. Both women were out driving with Mr. Lindsay upon his invitation, and merely for pleasure. Defendant also proved that immediately after the accident Mr. Lindsay had said that a dog running from the west towards the team had frightened the near horse. While Mr. Lindsay did not admit the statement in that form, he nevertheless did admit that he said at the time that he thought it might have been a dog that frightened the horse, because he did not think that the street car could have done it; but he said he did not know it was a dog. The motorman also testified on behalf of the defendant, and in his testimony said that he saw the team and buggy driving ahead of the car all the time after they had crossed the street car track; that the street car was running about twenty miles an hour; that the team and buggy were always a safe distance from the track until just a moment before the car struck the horse, when it seemed to him that the team suddenly swerved to the east towards the track, but that it was done so quickly that he could not stop the car in time to prevent the collision with the horse.

Upon substantially the foregoing facts the jury returned a verdict for the plaintiff, upon which judgment was duly entered, and from which defendant appeals.

The court charged the jury upon the question of plaintiff's negligence as follows:

"You are instructed that the plaintiff in this case is not responsible for the acts of negligence of Lindsay, the driver, if any you find him guilty of, and, if plaintiff sustained an injury by means of a collision between Lindsay's carriage and the street car, she may recover damages from any party by whose fault or neglect the injury occurred. The negligence of the driver of the carriage in which plaintiff was riding will not prevent her from recovering damages against the street car company if the defendant company was also negligent and such negligence proximately contributed to her injury. You are instructed that there is no evidence in this case of any negligence on the part of the plaintiff."

The court, in another paragraph, also, in different phraseology, practically expressed the same thought.

Appellant excepted to all of the foregoing charge and now insists that the court erred in stating the law. Appellant contends that, under the evidence, Mr. Lindsay was guilty of negligence, and it is insisted that, under the circumstances of this case, his negligence was imputable to respondent. It is further contended that, although Lindsay's negligence be not imputable to respondent, she nevertheless was also guilty of negligence. In this connection it is contended that, if her conduct did not constitute negligence as matter of law, it nevertheless was such that it should have been submitted to the jury, and it was for them, and not for the court, to say whether she was guilty of negligence or not.

In view of the relationship existing between Mr. Lindsay, the driver of the team and buggy, and the respondent at the time of the accident, the doctrine of imputed negligence, in our judgment, has no application in this case. The case of Lochhead v. Jensen, 42 Utah 99, 129 P. 347, decided by this court in December, 1912, is, we think, in principle not distinguishable from the case at bar. That was a case where one person, upon invitation of another, was riding in the latter's automobile, and, while so riding, the automobile was overturned, and the invitee was killed. We held, in the absence of evidence to show that the deceased had exercised any control over or direction of the operation or handling of the automobile, or consented to, or acquiesced in the manner of its operation, the negligence of the driver could not be imputed to the deceased. True, in that case the deceased was riding in the rear seat, but it was shown that the automobile was an open one, and we cannot see how, under the evidence, it would have made any difference if he had actually been sitting in the front seat with the driver. While in this country the courts are practically unanimous in repudiating the doctrine of imputed negligence as it was first declared in England, except in a particular class of cases to be noted hereafter, yet, notwithstanding the repudiation of the doctrine, there is considerable diversity of opinion with regard to the precise duties that are imposed upon the person who is riding in the vehicle or conveyance of another in case of danger, and also with regard to when a particular relationship of the parties may make the doctrine applicable in a particular case.

Counsel for appellant have cited numerous cases emanating from courts of last resort of many jurisdictions, including many federal cases, in which the variant views of the courts are reflected. We cannot take time to review those cases here. It must suffice to say that we have carefully examined them and, after...