Brock v. Ward, 12737
| Decision Date | 10 October 1972 |
| Docket Number | No. 12737,12737 |
| Parties | d 303 Lettie Dell BROCK, Plaintiff and Respondent, v. Dean O. WARD and State Farm Mutual Automobile Insurance Company, Defendants and Appellants. |
| Court | Utah Supreme Court |
Glenn C. Hanni, of Strong & Hanni, Salt Lake City, Roger Dutson, Ogden, for defendants and appellants.
Richard H. Thornley, Ogden, for plaintiff and respondent.
Appeal from a jury verdict awarding plaintiff damages in an auto collision case, where plaintiff, driving to work, ran into the rear end of a vehicle parked partly off and partly on a comparatively wide highway about 7:00 a.m. Reversed, with costs to appellants.
The facts are not complicated. Looking at them in a light of admissions and concessions made and largely testified to by plaintiff herself: The road was paved and 22 feet wide, was clear, dry, straight and level, and it was daylight. Defendants' parked truck was 3 to 3 1/2 feet on the pavement, and the rest of it on the shoulder of the highway. Plaintiff said the sun was just coming up over the horizon almost directly toward her left, producing some glare. Nonetheless, she said she saw the parked truck a quarter of a mile away before hitting it. There was nothing in front of her on the highway except the truck. She neither slowed down nor tried to go to the left of it although she had 18 feet to do so and could have done both. Furthermore, she conceded that she saw the truck at all times before the collision. Under such circumstances it is impossible to understand how the jury could have concluded else than that she was chargeable with negligence barring recovery. Having done otherwise, we think, was the product of conjecture and that the trial court should not have given the case to the jury at all, but should have found that plaintiff was negligent as a matter of law. It may or may not have been the result of empathy toward plaintiff as opposed to the insurance company, a defendant here,--an unusual circumstance in collision cases,--where the jury certainly knew the company was on the risk, and could pay. This happens on occasion.
We are sympathetic on account of the plaintiff's loss in this case, but we would be remiss in concluding other than that which we do in reversing the decision since we are convinced and conclude, that under the application of sound legal principles and the doctrine of stare decisis, compensability cannot be adjudged here. We believe our conclusion is borne out by the authorities,--our own case of Hirschbach v. Dubuque Packing Co., 7 Utah 2d 7, 316 P.2d 319 (1957), and other dispositive authorities reflected in 22 A.L.R.2d 292, 300.
I concur, but in view of the dissenting opinion would like to make these further observations.
The dissenting opinion attempts to excuse the plaintiff from her negligence by accepting her self-serving declaration that when she was 100 to 150 feet from the truck 'the sun came full boom over the mountain' so that she could not see that which she had already been seeing for at least a quarter of a mile. She said she thought the defendant's truck was entirely off the highway. She thus was negligent in seeing but not comprehending that which was clearly visible to her. The highway was straight and level, and there was no traffic to interfere with her moving over into another lane when she saw or should have seen that the truck was in her own lane.
Her self-serving testimony is unworthy of belief. She was driving in a southeast 1 direction and if we accept her statement as true the sun could not come 'full boom' so as to blind her. 2
On July 17, the day of the accident, the sun rises approximately 16 degrees north of east and could not blind her even if it came 'full boom' over the mountain. It would be rising at least 60 degrees to the left of her line of sight.
The dissent further attempts to change the direction of the 'full boom' over a mountain to 'full boom' around a mountain and laterally through a depression. There is no evidence to justify any such statement. Even if the sun came around a side of a mountain it would not do so suddenly. The plaintiff was traveling 55 miles per hour and would travel 80 feet in one second of time. The sun is approximately 866,000 miles in diameter and distant 93,000,000 miles from all mountain peaks. Therefore it is distant approximately 107 times its diameter. By the law of proportional triangles the plaintiff would need be 107 times 80 feet or approximately 8560 feet from the peak in order for the sun to appear laterally from behind it in one second.
We take judicial knowledge of the fact that there is no sharp shadow of the sun at a distance of one and one-half mile from a perpendicular wall or mountain cliff and so there could be no sudden blinding of the plaintiff even if the speculation of the dissent were a fact.
There is no excuse for plaintiff's running into the parked truck, which she admits she saw for at least a quarter of a mile.
Trial judges should not be parties to a proceeding which awards damages not sustained by the evidence. The dissenting opinion if adopted by this court would tend to prevent a trial judge from ever overturning a jury verdict hereafter, regardless of its defects, for there can never be another case where contributory negligence was more certain than in this one.
I would sustain the jury verdict and the judgment of the trial court thereon.
This is one of the anomalies in lawsuits where a divided appellate court, by a majority of one justice, rules in effect that no reasonable minds could conclude as have the other justices, the trial judge, (in this instance two district judges) and the unanimous verdict of all of the jurors.
Notwithstanding what has just been said, candor compels acknowledging that the issue presented here is not without difficulty, and upon which I concede there is a basis upon which 'reasonable minds' may differ. Each of the parties to this action makes plausible arguments based on what, it is not to be doubted, they sincerely regard as persuasive grounds to support their respective contentions.
The plaintiff contends for her right of trial by jury to obtain damages which she claims resulted because of the defendant's wrong; and the defendant for his right to be protected from liability which he urges cannot be imposed by a correct application of the rules of law, because even though he may have been guilty of error, the plaintiff's injury was nevertheless her own fault for not seeing and avoiding his truck.
As a foundation to consideration of the only issue here involved: i.e., whether the trial court was compelled to rule as a matter of law that the plaintiff was contributorily negligent, there are certain principles to be had in mind: The burden is upon the defendant to prove and to convince the jury by a preponderance of the evidence that the plaintiff was contributorily negligent. The court could properly take that issue from the jury only if the evidence so demonstrated with such certainty that all reasonable minds would be so persuaded. On the other hand, if the evidence is such that reasonable minds acting fairly thereon could remain unpersuaded, then the trial court is justified in submitting the issue to the jury. 1 In making that appraisal, we should look upon the evidence and any inferences that fairly could be drawn therefrom in the light favorable to the plaintiff.
At about 7:00 a.m. on July 17, 1968, plaintiff was driving from her home in Willard along U.S. Highway 91 to her work at the Ogden Defense Depot. The evidence is that in the area of the collision she was traveling southeasterly. (It should be noted that 'southeasterly' is a general term, which could include points of the compass from just south of due east to just east of due south.) The mountains, which run generally north-south, east of the highway, were in her view. She testified:
A. Well, about a block, approximately, ahead of me I noticed a truck parked off the road. It appeared to be off the road. But the sun kind of glared. It was just coming up over behind a peak. And all the way along that truck appeared to be off the road entirely. When I got within a short distance, the sun came full boom over the mountain, and my eyes had to adjust to it. . . . the truck appeared to be off the road. I assumed it was. But my eyes had to adjust to the sun coming over, I guess, . . .
Q. And just describe what happens as the sun makes its last move over the top of the mountain, . . ..
A. Well, . . . There is just a sudden glare all at once. And your eyes are not adjusted to the bright light. It takes a few seconds to adjust them.
Q. Now then what happened as your eyes were adjusting? . . .
A. I crashed into the back of the truck.
The obstacle confronting the plaintiff is the look, see and heed rule: that where there is an obstacle plainly to be seen, and one fails to avoid it, it is ordinarily held that he was negligent either in failing to look or failing to heed. 2 However, that rule in itself is subject to being applied in light of the most fundamental rule in law of torts, that the duty of care is measured by what an ordinary, reasonable, and prudent person would do under the particular circumstances. We have recognized modifications of the look, see and heed rule in applying it under special circumstances: that where there is something to interfere with the view of the driver, or with his ability to avoid the obstacle, so that reasonable minds acting fairly on the evidence could believe that the plaintiff's conduct was within the standard of reasonable care under the particular circumstances, or more accurately stated, where they could refuse to be persuaded that her conduct fell below the standard of due care, then she need not be judged negligent as a matter of law, but the issue is one for the jury.
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