O'Brien v. Alston

• Decision Date: 09 March 1923
• Docket Number: 3822
• Parties: O'BRIEN v. ALSTON et al
• Court: Utah Supreme Court

213 P. 791

61 Utah 368

O'BRIEN v. ALSTON et al

No. 3822

Supreme Court of Utah

March 9, 1923

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Action by Elizabeth J. O'Brien against C. M. Alston and another. Judgment for plaintiff, and defendants appeal.

REVERSED AND REMANDED, WITH DIRECTIONS.

Morgan & Huffaker, of Salt Lake City, for appellants.

George Jay Gibson and Vere McCarthy, both of Salt Lake City, for respondent.

FRICK J. WEBER, C. J., and GIDEON and THURMAN, JJ., concur.

OPINION

FRICK, J.

The plaintiff recovered judgment against the defendants for damages to an automobile alleged to have been caused by the negligence of the defendants in placing a barricade across a public highway, which was being reconstructed by them under a contract with the state of Utah, and with which barricade the automobile in question came in collision while it was being operated on said highway. The defendants appeal from the judgment.

In view that the case turns upon the contributory negligence of the plaintiff and her chauffeur, as will hereinafter more fully appear, we pass by the question of defendants' negligence.

The evidence respecting the question of contributory negligence is clear, explicit, and without conflict or dispute. The evidence shows that the automobile in question was being driven by plaintiff's son, with her consent, on a public highway that was undergoing reconstruction by the defendants as contractors; that is, the contractors were constructing a concrete roadway, and in doing that a certain section of the highway was withdrawn from travel until such section should be completed, when travel would be resumed on that section and another section would be withdrawn as aforesaid. The evidence also shows that barricades had been placed at the extreme ends of the section then under construction, and a detour roadway had been provided for passage.

The accident in question occurred in driving the automobile against the barricade. The automobile was thus overturned, which resulted in the damages here complained of. It is not necessary to say more about the barricades or the condition of the roadway, etc.

Our statute (Comp. Laws Utah 1917, § 3976), which requires automobiles to be equipped with lights, so far as material here, provides:

"It shall likewise be equipped with at least two front lamps throwing strong white lights sufficient to reveal all persons, vehicles, or substantial objects for a distance of at least 150 feet in the direction such vehicle is proceeding," etc.

The plaintiff's son, who drove the automobile, quoting from the bill of exceptions, testified as follows:

"Q. I am going to read, Mr. O'Brien, from transcript, and I want you to tell me whether or not you testified as follows during the former trial of this case: 'Q. Now, in testifying this morning I understood you to say that you had something on the lights there that prevented them from shining ahead very far. What was that? A. Warner lenses. Q. Warner lenses. Just describe to the jury what you mean by Warner lenses. A. Well, it is--the idea of the lense is to throw the light down on the road instead of up into the pedestrians' faces and an on-coming car. It is to comply with the city and county ordinances. Q. Is that the reason you had it equipped that way? A. The car is equipped that way. Q. Yes, and that, of course, prevents it from throwing the light at any great distance ahead? A. Yes. Q. But, as you state, it makes a good light a short distance ahead? A. Yes, sir. Q. Now, for about what distance would it make a good light? A. Not over 75 feet; I don't think they will show that far. I haven't measured them since. Q. So, as the car was equipped at the time of the accident it would not--you could not see an object more than 75 feet? A. No. Q. Is that correct? A. Yes. Did you so testify on the former trial? A. Yes, sir. Q. And that is all correct? A. Yes, sir."

The effect of the foregoing evidence is clear and explicit that the lights on the automobile failed to measure up to the standard required by the statute. That, under our former decisions, constituted negligence per se, or as matter of law. Plaintiff's son, however, also testified that if the lights on the automobile had thrown a light 125 or 150 feet ahead of the car, he could have seen the barricade, and could have prevented the accident.

Under this state of the evidence defendants moved for a directed verdict upon the grounds that plaintiff's evidence disclosed contributory negligence as a matter of law, in that she failed to comply with the statutory provisions respecting the lights with which the automobile in question should have been equipped, and that her son was also guilty of negligence as a matter of law in operating the automobile at the time of the accident.

In order to meet defendants' objections the plaintiff was permitted to reopen her case, and, on being recalled, she testified in substance that, on the night of the day of the trial, and after the motion for a nonsuit had been interposed, she made tests to determine how far the lights with which the automobile in question was equipped on the evening of the accident would throw the light so as to disclose objects ahead of the car. She testified, "Well, a light-colored object, it [the light] would show about 200 feet;" that a dark-colored object would be disclosed at about 150 feet ahead of the car. She, however, also testified that the tests were made about two years after the accident, and that what she based her statements on was the fact that the lights on the automobile were the same ones that were on it at the time of the accident. She also admitted on cross-examination that the lights could be so adjusted as to throw a light a greater or a lesser distance ahead of the automobile, but said that she did not think that any change had occurred in the two years since the accident.

It is contended that the foregoing statements were sufficient to authorize the jury to find that plaintiff's automobile was equipped with proper lights, and that she was not guilty of contributory negligence as a matter of law in that respect. Is this contention sound? Plaintiff's son, who knew all about the lights, and who, and not the plaintiff operated the automobile, not only once, but repeatedly, testified that the lights did not measure up to the standard required by the statute, and that if they had done so he could have seen the barricade across the roadway in time to have avoided the collision. If it is kept in mind that plaintiff's alleged tests were not made until two years after the accident, and that she did not disclose the circumstances under which they were made, nor give any information respecting the position of the automobile or the lights, which she said would disclose an object ahead of the car, her evidence is of no probative force or effect. She did not pretend to have any knowledge respecting the condition of the lights at the time of the accident, while her son had positive knowledge respecting that condition, and in the most positive terms stated what that condition was. If, therefore, all that plaintiff said concerning the condition...