Beckstrom v. Williams

• Decision Date: 08 April 1955
• Docket Number: No. 8027,8027
• Citation: 3 Utah 2d 210,282 P.2d 309
• Parties: d 210 James H. BECKSTROM, Plaintiff and Appellant, v. Paul WILLIAMS, Defendant and Respondent.
• Court: Utah Supreme Court

Page 309

282 P.2d 309

3 Utah 2d 210

James H. BECKSTROM, Plaintiff and Appellant, v. Paul WILLIAMS, Defendant and Respondent.

No. 8027.

Supreme Court of Utah.

April 8, 1955.

A. U. Miner, Pugsley, Hayes & Rampton, Salt Lake City, for appellant.

Stewart, Cannon & Hanson, E. F. Baldwin, Jr., E. M. Garrett, Salt Lake City, for respondent.

CROCKETT, Justice.

Plaintiff James H. Beckstrom brought this action to recover damages for personal injuries and damage to his tractor caused when a truck driven by defendant Paul Williams ran into the side of the tractor as plaintiff was driving it onto the highway from a country driveway. Defendant counterclaimed for damages to his truck. The jury returned a verdict of no cause of action against both parties and plaintiff appealed.

The principal issue presented to this court is whether the trial court committed prejudicial error in refusing plaintiff's request to submit his case to the jury on theory of last clear chance.

The jury having rejected plaintiff's complaint, on appeal we would ordinarily view the evidence in the light most favorable to the defendant. This is not true, however, in this case where plaintiff's appeal challenges the trial court's refusal to submit plaintiff's theory of the case to the jury, as was his undoubted right if the evidence would justify reasonable men in following his theory. ¹ Notwithstanding some inconsistency between plaintiff's version of the accident as told to the investigating officer and his testimony at trial, the evidence in his favor was not such that it could be rejected as a matter of law. The question of his credibility was for the jury.

In determining whether the case should have been submitted on the plaintiff's theory of last clear chance it was the duty of the trial court, and it is our duty on this appeal, to consider the evidence in the light most favorable to the plaintiff.

On plaintiff's behalf the evidence can reasonably be interpreted as showing the following:

On August 3, 1951, about 4:30 p. m., plaintiff, 65 years of age, was driving a 2 1/2 ton tractor pulling a side delivery rake eastward from a private driveway onto the northsouth highway. The hard surface of the highway at that point was from 21 to 22 feet in width with a shoulder on each side of from 2 to 3 feet. The tractor itself was 11 1/2 feet long with the driver's seat set about 10 feet back. In the driveway plaintiff stopped the tractor to see that everything was all right with the machinery, then proceeded at 1 to 1 1/2 miles per hour in low gear forward into the highway at right angles to the pavement. A heavy growth of trees, weeds and bushes obstructed his view of the highway, and by the time plaintiff leaning forward in his seat could see along the highway the tractor's front wheels were almost to the west side of the hard surface. He saw that the highway was clear to the south; to the north he saw defendant's truck about 325 feet away approaching at a speed of 40 to 60 miles per hour (defendant estimated his speed at 40 m. p. h.; plaintiff at 45 to 50 m. p. h.; and other witnesses at 40 to 60 m. p. h.). Upon seeing defendant approaching, plaintiff shut off the gas placed the tractor in neutral gear and applied both foot and hand brakes. Because there was a little slope down to the highway, he could not bring the tractor to a stop until it was about 5 feet onto the hard surface, leaving about 16 feet of unobstructed roadway. At the instant the tractor stopped, plaintiff saw defendant's truck still some 125 feet distant. The truck continued forward without reducing speed or changing direction and struck the tractor in its left side between the front and rear wheels, throwing plaintiff to the ground, seriously injuring him, and damaging his tractor.

The last clear chance doctrine originated in 1842 in the English case of Davies v. Mann, 10 Mees & W. 546, as an exception to the general rule that one guilty of negligence contributing to his own injury may not recover from the negligent injuror. In that case plaintiff Davies had hobbled his donkey and left it grazing in the public highway and defendant's wagon, going at 'a smartish pace,' drove into the animal, inflicting injuries from which it died. The doctrine was thus originally applied where the plaintiff's donkey was placed in peril by his owner's negligence from which the plaintiff could no longer extricate it even in the exercise of due care; the defendant had opportunity to know these facts, yet failed thereafter to exercise the normal care necessary to avoid causing injury.

The general principle of the last clear chance doctrine has been accepted in Utah from early times ² and is firmly established in our law. Its most obvious application is in cases where the plaintiff is in inextricable peril. In the case of Knutson v. Oregon Short Line R. Co., ³ a boy who had been lying on the tracks, either unconscious or asleep, was killed when the engineer failed to stop the train in time to prevent an accident. Plaintiff recovered at trial, the judge having given an instruction on last clear chance. On appeal this court affirmed, holding that if the boy was 'asleep or for other reason was unconscious' he was unable to escape, and the last clear chance doctrine applied.

Similarly, in the case of Teakle v. San Pedro, L. A. & S. L. R. Co., ⁴ evidence was excluded which would tend to prove that decedent, who due to his own negligence had been struck by a backing train, was not then killed, but was rendered helpless to escape. The evidence would tend also to show that he was killed when the engine firebox struck him after the entire train had passed over him, and that the train crew could have averted his death if they had been properly attentive. Exclusion of the evidence which could have supported a verdict for plaintiff on the last clear chance theory was held prejudicial error and the case was remanded for a new trial.

An extension of the original doctrine of last clear chance has been made to cases where the plaintiff was not in inextricable peril but was merely negligently inattentive up to the time of the accident; in such instance, before plaintiff may recover, the defendant must actually know of plaintiff's inattention and have opportunity to avoid the injury. Illustrative of this extension is Graham v. Johnson, ⁵ where defendant was driving an automobile along a street in which she saw plaintiff and other boys playing football. She did not sound her horn or give any warning, though plaintiff was obviously inattentive, and ran into him when upon a yell from his companion he started into her path. A directed verdict for defendant was reversed and a new trial ordered on the ground that the issue of last clear chance should have been presented.

Both of the facets of the doctrine of last clear chance referred to above are set out in sections 479 and 480 of the Restatement of Torts have recently been expressly approved by this court as correct statements of law. ⁶ Section 480, which permits recovery despite plaintiff's negligent inattention up to the time of injury only if it appears that the defendant actually knew of plaintiff's peril, ⁷ is not applicable to our case. Defendant affirmatively states that he did not see plaintiff's tractor until too late for him to act. The fact that the defendant did not turn or noticeably slacken speed tends to corroborate this assertion.

We are therefore concerned only with that portion of the rule which would permit a plaintiff in inextricable peril to recover from one who had reason to know of the peril and to avoid injuring him. Section 479 states the rule thus:

'A plaintiff who has negligently subjected himself to a risk of harm from the defendant's subsequent negligence may recover for harm caused thereby, if immediately preceding the harm, (a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care and (b) the defendant (i) knows of the plaintiff's situation and realizes the helpless peril involved therein; or (ii) knows of the plaintiff's situation and has reason to realize the peril involved therein; or (iii) would have discovered the plaintiff's situation and thus had reason to realize the plaintiff's helpless peril had he exercised the vigilance which it was his duty to the plaintiff to exercise, and (c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming the plaintiff.'

In the present case the trial judge was bound under this rule of law to give the requested instruction on last clear chance only if it appears that reasonable men might conclude from the evidence most favorable to plaintiff that three conditions existed--(A) that plaintiff was in a danger from which he could no longer extricate himself, (B) that defendant knew, or in the exercise of reasonable care should have known, that plaintiff was so endangered, and (C) that defendant thereafter, by exercise of reasonable care, could have avoided injuring the plaintiff.

As to (A), due to the cumbersome nature of the tractor, it seems clear that reasonable minds could believe that as soon as it moved out into the lane of traffic plaintiff was in danger from oncoming vehicles, from which he could not extricate himself or his tractor; that it would have been unreasonable, considering the safety of others, including defendant himself, to expect plaintiff to jump off and abandon the moving tractor upon the public highway; and further, they could have believed that jumping to either side presented plaintiff no assurance of safety. Probably before, but at least after the tractor was stopped, about five feet out onto the highway, (at which time defendant's truck was 125 feet away) it reasonably could be thought that plaintiff no longer had time to escape and was in inextricable peril, there being but two seconds if the defendant were going 40 m. p. h., and less if he were going...