Barlow v. Utah Light & Traction Co.
| Decision Date | 20 April 1931 |
| Docket Number | 4819 |
| Citation | 77 Utah 556,298 P. 386 |
| Parties | BARLOW v. UTAH LIGHT & TRACTION CO |
| Court | Utah Supreme Court |
Appeal from District Court, Third District, Salt Lake County; L. B Wight, Judge.
Action by Ernest A. Barlow against the Utah Light & Traction Company. Judgment for defendant, and plaintiff appeals.
REVERSED AND REMANDED, with directions.
Willard Hanson and A. H. Hougaard, both of Salt Lake City, for appellant.
Bagley Judd & Ray, of Salt Lake City, for respondent.
This action was brought by Barlow, the plaintiff below, against the Utah Light & Traction Company to recover damages for personal injury alleged to have been sustained by him through the company's negligence in the operation of one of its street cars in Salt Lake City. The case was tried to the court and a jury. At the conclusion of the plaintiff's evidence the defendant, without offering any evidence, also rested and made a motion that a verdict be directed of no cause of action, on the ground that the plaintiff as matter of law was shown guilty of contributory negligence. The motion was granted, and a judgment entered accordingly, from which this appeal is prosecuted. The only question presented for review involves such ruling.
The collision of the street car operated by the company and an automobile, a Chevrolet coupe, driven by the plaintiff, occurred at about 2 o'clock in the afternoon of December 28th, at a street crossing or intersection of Seventh East street, running north and south, and First South street, running east and west, in the center of which the company maintained double street car tracks; the distance between the rails of each track being 4.8 feet and the distance between the two tracks 7 feet. Street cars operated on the south track were operated from the city towards the east, while street cars operated on the north track were operated towards the west and towards the city. The width of each street from property line to property line is 132 feet, but only 96 feet from curb to curb on First South street. Seventh East street is up grade towards the north, and First South street down grade towards the west. As the plaintiff, with a lady companion in the automobile, was driving north over the street car tracks, the front part of his automobile was struck on or near the second or north track by a street car operated on that track from the east.
A city ordinance was alleged and put in evidence by the plaintiff, which provided that a motorman or other person in charge of the operation of a street car was required "to keep a vigilant watch for all persons, teams, vehicles * * * either on the track or tracks, or near the same, or moving toward the same, and on the first appearance of danger to such team, vehicle, or person, said car shall be placed under careful control, and shall be stopped in the shortest time and space possible," and that it was unlawful to operate a street car over a street crossing at a speed greater than 15 miles an hour.
In the complaint it is alleged that the street car with which the collision occurred as it approached and entered the crossing was operated at an unlawful, dangerous, and excessive speed of 30 or more miles an hour; and without those in charge thereof observing a proper or sufficient or any lookout, and without giving any warning of its approach. It further is alleged that at the crossing for some considerable time the defendant suffered and permitted accumulations of ice and snow between and on the sides of the street car tracks, causing deep ruts and ridges, and rendering it more or less difficult to drive an automobile over the tracks, which, as is alleged, imposed a greater vigilance on street car operators in discovering the presence and approach of automobiles and vehicles, and the exercise of greater care and caution in the operation of a street car approaching and passing over the crossing.
All of the material allegations of the complaint were denied, and, in addition thereto, the defendant alleged contributory negligence on the part of the plaintiff, in the particulars that he carelessly and negligently entered the crossing when two street cars were approaching it, one from the west or the east-bound street car, and the other from the east or the west-bound street car, and negligently drove in front of the east-bound street car and into the west-bound street car; that his automobile, in violation of traffic rules of the city, was not equipped with safe or proper brakes and braking appliances, and was not driven in a careful or prudent manner; that, in violation of traffic rules, the plaintiff drove the automobile so as to hinder, delay, and obstruct the movements of the street cars; that he failed to yield the right of way to the west-bound street car with which his automobile collided; and that he failed to look or listen to discover the approach of the west-bound street car; and that such failure was the direct and proximate cause of the collision and injury complained of.
Though the evidence adduced came all from the plaintiff and his witnesses, yet in certain particulars it was somewhat in conflict, especially as to the condition of the weather, the distance, because of a snowstorm, one could see and discover objects, the speed at which the west-bound street car traveled as it approached and entered the crossing and collided with the automobile, and as to some other conditions and circumstances surrounding the accident. Since, however, the verdict was directed against the plaintiff, we, in considering and reviewing the ruling, are required to take the testimony and the reasonable inferences deducible therefrom in the light most favorable to the plaintiff. Nor are we justified in picking out portions thereof most strongly against the plaintiff and base a ruling thereon, nor are we on the record at liberty to rule the case on what we might regard to be the preponderance or greater weight of the evidence. The verdict was directed, and the ruling here defended, on the sole ground of contributory negligence of the plaintiff, in the particular that he failed to see or discover the approach of the west-bound street car, and, as is claimed, drove immediately in front of it and under such circumstances as to render him guilty of negligence as a matter of law. Nothing is claimed for any of the other alleged acts of contributory negligence.
Thus in stating the case and in referring to the evidence we do so in the light most favorable to the plaintiff. Seventh East street, on which the plaintiff was driving, has a parking in the center. Vehicles traveling on that street to the south travel on the west side of it, and those traveling to the north on the east side thereof. One thus driving north on the street and approaching and entering the street intersection, would drive over the east portion of the intersection. It was shown that there were considerable ice and snow on the street, on the crossing, and on the side of and between the street car tracks, which caused deep ruts in the ice and snow on the traveled portion of the street and crossing, as some witnesses testified eight inches deep, which interfered with the driving of an automobile over the crossing and over the street car tracks, and that, in driving along and over the same, one was required to follow and keep in the ruts, from which it was difficult to turn out.
It was further shown that, on the day and at the time of the accident it was snowing and blowing. The evidence is somewhat in conflict as to the severity of the storm. One witness testified he did not know whether it was snowing at the time of the accident or not. Others testified that Others testified that it was Others testified, "It was very stormy," and that it was "a kind of sleety snow." Some witnesses testified that because of the storm one could see a distance of only 50 to 75 feet.
It was under such circumstances, and under such stated adverse driving conditions of the street and of the crossing, that the plaintiff approached the crossing driving in a northerly direction, and attempted to drive over the street car tracks. As he approached the crossing, he discovered a street car also approaching it coming from the west and to his left on the first or south street car track. He slowed down, not knowing whether the street car would stop or not. The street car also slowed down, and, as it neared the center of the crossing stopped and let the plaintiff pass. He threw his automobile in intermediate gear and passed on at a speed, as some witnesses testified of 5 or 6 miles, others 7 or 8 miles, an hour, and, as witnesses testified, paying attention to his driving. As he attempted to do so, the front part of his automobile was struck by a street car operated from the east or on the second or north street car track. Witnesses testified that that street car, as it approached and entered the crossing and collided with the automobile, was operated at about 30 miles or more an hour, others from 35 to 40 miles, others very fast, "going at a terrible speed," without sounding the gong or whistle, or giving any warning of its approach and without slackening the speed of the street car or applying the brakes, until it struck the automobile, which, by the impact was carried down the track between the two street cars in a demolished condition a short distance beyond the standing east-bound street car, where it burst into flames with the occupants of the automobile...
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