Barker v. Savas

• Decision Date: 16 April 1918
• Docket Number: 3145
• Citation: 52 Utah 262,172 P. 672
• Court: Utah Supreme Court
• Parties: BARKER v. SAVAS et al

172 P. 672

52 Utah 262

BARKER v. SAVAS et al

No. 3145

Supreme Court of Utah

April 16, 1918

On Petition for rehearing May 9, 1918.

Appeal from District Court of Salt Lake County, Third District; Hon W. H. Bramel, Judge.

Action by Charles Barker against Andrew Savas and others.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

J. J Whitaker for appellants.

Willey Willey & Watkins for respondent.

THURMAN, J. FRICK, C. J., and McCARTY, CORFMAN, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

This is an action to recover damages for the death of a minor child, son of plaintiff, alleged to have been caused by the negligence of the defendants. It is alleged, in substance, that while said child was riding northerly along and upon the east side of what is known as the "Redwood Road," in the Taylorsville district, Salt Lake County, a large truck automobile driven and directed by defendant Andrew Savas, in a northerly direction, at a dangerous rate of speed, negligently, carelessly, and willfully ran upon and against said child, knocking and throwing him with great and violent force to the ground, thereby causing his immediate death. It is also alleged that the said Andrew Savas was at the time the servant and employee of the defendants and acting in the due course of their business, and that the child at the time of his death was of the age of six years, strong, able-bodied, and capable and able to render aid, assistance, and comfort to the plaintiff. Damages are alleged in the sum of $ 6,250, for which the plaintiff prays judgment. The case was tried to a jury, which returned a verdict for the plaintiff for $ 2,500. Judgment for said sum was duly entered; motion was made for a new trial and overruled. Defendants appeal.

Appellants assign as error the admission of certain evidence, error in instructions to the jury, and insufficiency of the evidence to sustain the verdict.

The most serious question presented, and the one most earnestly insisted upon by appellants, relates to the sufficiency of the evidence to sustain the verdict. This necessitates a careful consideration of all the evidence relied on by respondent. There is substantial evidence in the record tending to show the following facts: That the son of respondent, who will hereafter be referred to as "the deceased," was six years old at the time of his death; that he lived with his parents in Taylorsville, Salt Lake county; that he was a bright, able-bodied child, above the average size for his age; attended school alone; did little chores for his parents, such as bringing in water and fuel, picking up tin cans, raking up debris on the lot, and did small errands for his parents; that his home, where he lived with his parents, was situated on the east side of the Redwood road referred to in the complaint, about 1,500 feet north of the Taylorsville blacksmith shop, and the blacksmith shop was on the west side of the road; that approximately halfway between the plaintiff's home and the blacksmith shop the cemetery grounds were situated on the west side of the road, and a canal on the other, the waters of the canal coming close to the road; that the road through this section of the country and for several hundred feet both north and south was level and free from obstructions--nothing to obscure the vision or prevent objects upon the road from being seen throughout the entire distance. The traveled road was from two and a half to three rods wide. The day on which the accident occurred was somewhat cloudy with some wind and dust, but not considerable.

At about twelve-thirty p. m. on the 6th day of November, 1915, the deceased was at the home of his parents above referred to. He had been to the blacksmith shop a few minutes before to get his tricycle repaired by his father, and had returned. At about the hour named some little boys were passing the plaintiff's home with a little pony and saddle horse, going south on the road. Deceased asked his mother, who was scrubbing the floor, if he might follow the little boys down to the cemetery, which, as before stated, was just opposite the canal. She gave him permission and watched him until he reached the cemetery bridge. He rode his tricycle. She saw him down to that point, and when he turned to come home. That was the last time she saw him alive. While he was at the point mentioned he was seen by the witness David Cook. Deceased was watching the little pony drink out of the canal. David Cook knew deceased and talked with him, but the conversation was not disclosed. The witness saw deceased start north on his tricycle on the east side of the road. Witness went south to the blacksmith shop where he worked. While on his road to the blacksmith shop a truck automobile passed him, going north. Melvin Devereaux, another witness, saw deceased on his tricycle going north on the east side of the road. Deceased was north of the canal. This witness also saw the truck going by just behind the boy; then went into his shop. Clyde Panter, another witness, a clerk at Lindsey's store, south of the blacksmith shop, took his lunch at home, about a quarter of a mile north. Returning from his lunch to the store, a large truck automobile passed him going north. A. B. Caldwell, another witness, attending a funeral still farther south than Lindsey's store, saw a large truck automobile pass the Ward House, where the funeral was held, going north. Two other witnesses saw the same kind of an automobile going north. It is described by all the witnesses as a truck automobile, light-colored top and dark body. Some of the witnesses say that the automobile was going very fast. The witnesses agree substantially as to the time when the truck went by, which varied all the way from twelve-thirty to one o'clock p. m. One or two witnesses recognized the truck as one which the Greeks drove between Salt Lake and Bingham. There is, however, no controversy concerning the fact that the defendant Andrew Savas, at about that time, drove over the road in just such a vehicle, going north, and it undoubtedly was the one seen and testified about by the witnesses above named. He was on business for the defendants. The testimony further tends to show that no other automobile passed over the road, in either direction, for some time before or after the truck passed by. The first one seen to pass afterwards was that of the witness Geo. A. Jenkins, undertaker, going north from the funeral to which we have referred. At a point somewhere from 200 to 400 feet north of the point where the canal touches the road heretofore mentioned, the witness Jenkins found, on the east side of the road, the little tricycle lying on its side, and about thirty feet north of the tricycle the body of the deceased. He turned the body over, and found that the boy was dead. He made inquiry in the neighborhood, and found the mother, who identified the body as that of her son. He found the tracks of an automobile which had turned partially out of the traveled road near where the tricycle lay and then back into the road at a point north of where the body was found. The track of the automobile was quite plain. He thought the track he saw was made by a pneumatic tire. He had preceded the funeral procession, which was traveling north, by about fifteen or twenty minutes. When the funeral procession arrived at the point where he found the body, at the suggestion of Mr. Jenkins, it halted a few minutes, while some of the cortege examined the premises. The procession then moved on, and the witness, as undertaker, took charge of the deceased. The right wheel of the tricycle was somewhat bent. There were some bruises and abrasions on the face, left arm, and hand of the deceased, and the neck was broken, the bones being fractured, which in the opinion of the medical witnesses caused immediate death.

The defendant Andrew Savas admitted that he drove an automobile, of the description above given, from Bingham to Salt Lake City on the day in question, and passed the points above referred to at or about the time testified to by the witnesses, but denied any knowledge whatever of having struck the boy. His automobile had pneumatic tires in front and solid tires behind. It was testified by a former partner, who was unfriendly to him, that the defendant, in conversation with him after the accident, said he remembered something happened, that he looked back and saw the boy lying on the side of the road; that he saw no one had seen him and he drove on, increasing his speed. This testimony was vigorously assailed by impeaching witnesses, and considerable effort was made to destroy its effect.

The foregoing, in substance, constitutes the evidence in the case. As will be seen, the evidence as to the accident itself is almost entirely circumstantial. No eye saw it as far as the record discloses, and the jury that tried the case was compelled to ascertain the facts from such inferences as were warranted from the circumstances detailed by the witnesses.

That the deceased was struck by an automobile seems to be absolutely conclusive. If he had fallen off his tricycle without some violent force being applied, it seems altogether improbable that his neck would have been broken, much less the bones fractured as shown by the evidence. Furthermore, in such case it is impossible to conceive how the body would become separated from the tricycle by a distance of thirty feet. That the body was either thrown from the tricycle by a considerable force, or was dragged from it and borne along to the point where it was found, is a conclusion which cannot be avoided in the light of the evidence laid before the jury. In whatever way the accident happened it must have occurred probably within less than five minutes from the time his moth...