Caperon v. Tuttle

• Decision Date: 14 August 1941
• Docket Number: 6353
• Citation: 116 P.2d 402,100 Utah 476
• Court: Utah Supreme Court
• Parties: CAPERON v. TUTTLE et al

116 P.2d 402

100 Utah 476

CAPERON v. TUTTLE et al

No. 6353

Supreme Court of Utah

August 14, 1941

Appeal from District Court, Fifth District, Beaver County; Will L Hoyt, Judge.

Action by Robert Earl Caperon against A. M. Tuttle and others for injuries sustained when an automobile in which plaintiff was riding as a guest overturned after colliding with sheep owned and herded by defendants. From an adverse judgment, plaintiff appeals.

Reversed and remanded for new trial.

Cline Wilson & Cline, of Milford, for appellant.

Dilworth Woolley, of Manti for respondents.

WOLFE Justice. LARSON, McDONOUGH and PRATT, JJ., concur. MOFFAT, C. J., dissents.

OPINION

WOLFE, Justice.

Plaintiff brought this action in the District Court of Beaver County, Utah to recover damages for personal injuries which he sustained when the automobile in which he was riding as a guest, and which was driven by Tony Svalina, overturned after colliding with sheep owned and herded by defendants. From a judgment based on a verdict of "no cause of Action," the plaintiff appeals.

The collision occurred toward dusk on the evening of December 9, 1939. At that time defendants Don H. Brown and Wilford Domgaard were in charge of a herd of sheep, Brown as the camp tender and Domgaard as the herder. Brown was with the camp wagon some distance from the herd, when the accident happened. Domgaard, mounted on his horse, was actively herding the sheep and had started them over the highway. With all but about 300 of a total of 2,600 head of sheep on the other side of the highway, Domgaard started the remaining 300 head across and then went after stragglers. This necessitated his going beyond a knoll nearby so that he was completely out of sight of the sheep on the highway. There is a conflict in the evidence as to whether there was a crest in the road by reason of which the sheep, crossing at the point where the collision occurred were hidden from view. It is plaintiff's contention that the sole proximate cause of his injuries was defendants' negligence in leaving the sheep, unattended, so that they were not in motion, at a point on the highway where they were obscured from view, particularly at dusk when the color of the sheep blended with that of the terrain. Defendants denied any negligence on their part, and alleged the negligence of the driver of the car and the contributory negligence of plaintiff as proximate causes. That plaintiff's status was that of "guest" is not disputed. We need not, therefore, consider the law which would apply were his relation to the driver that of master and servant, principal and agent, or joint venture.

Plaintiff assigns error in the Court's Instruction No. 6, which reads as follows:

"You are further instructed that if you find that both Mr. Svalina and the herders, Mr. Domgaard or Mr. Brown were negligent at the time and place referred to and that the automobile overturned as a result of concurrent negligence of both Svalina and Domgaard, then you should determine the answer to these questions: (1) Would the accident have happened if Svalina had exercised ordinary watchfulness, care and skill in handling his automobile? (2) After Svalina became aware of the presence of defendants' sheep on the highway, could he, by exercise of ordinary skill and intelligence have avoided the accident? If you find that the accident would not have happened if Svalina had exercised ordinary watchfulness, care, and skill in handling his automobile, then the defendants are not liable. Also, if by the exercise of ordinary intelligence, skill and prudence, Mr. Svalina could have avoided the accident after he became aware of the presence of the sheep on the highway, then the defendants are not liable.

"On the other hand, if you find that in this case, the circumstances show such a combination of negligence on the part of defendants and Svalina, that it would not have happened but for the negligence of defendants, and you further find that Mr. Svalina could not have avoided the accident by the exercise of ordinary intelligence, skill and prudence after he, by ordinary watchfulness and care, should have discovered the sheep on the highway, then you should find for the plaintiff, and assess his damages as hereinafter explained, unless you further find from a preponderance of the evidence that plaintiff was himself guilty of contributory negligence as that is hereafter explained."

When read in the light of the other instructions in the case it is apparent that the above instruction purports to set up standards for determining proximate cause. We believe, however, that in so doing it was not only erroneous but also prejudicial. By this instruction the jury was informed as follows:

(1) If the accident would not have happened had the driver exercised ordinary care, the defendants were not liable.

(2) If, after he became aware of the presence of the sheep, the driver could have avoided the accident by ordinary skill, the defendants were not liable.

(3) If the accident would not have happened but for defendants' negligence, and the driver could not by ordinary skill have avoided it, after he should have discovered the sheep by ordinary care, defendants were liable.

By that instruction the jury may have been led to believe that the negligence or lack of negligence of Svalina, the driver of the car in which plaintiff was a guest, was the principal question for determination on the issue of defendants' liability. The questions it propounds in effect impute to the plaintiff the negligence or nonfeasance of the driver. That may not be done where the occupant of a car is a guest and the driver is in sole control of the automobile. Smellie V. Southern Pacific, 212 Cal. 540 299 P. 529, citing many cases; Hester V. Coliseum Motor Co., 41 Wyo. 345, 285 P. 781; Switzler V. Atchison, T. & S. F. Ry Co., 104 Cal.App. 138, 285 P. 918; Cowan V. Salt Lake & U. R. Co., 56 Utah 94, 189 P. 599. The cases are numerous which hold that if injuries result from a collision, the proximate causes of which are the concurring negligent acts of the driver and a third person, recovery may be had against either or both of such negligent persons. 4 Blashfield's Cyc. of Automobile Law & Practice, Perm. Ed., 374, § 2573; Hester V. Coliseum Motor Co., supra; Dewees V. Kuntz, 130 Cal.App. 620, 20 P.2d 733. The instruction, therefore, fails to advise the jury on the important point that plaintiff was entitled to recover from defendants if the jury found that the car overturned by virtue of the combination of the negligence of the driver in failing to use ordinary care to become aware of the sheep in sufficient time to stop, and in the negligence of the sheep men in failing to exercise ordinary care in driving the sheep across the highway, providing plaintiff was not guilty of contributory negligence. In other words, the jury was not informed that if the negligence of the driver and the negligence of the sheep men could both contribute proximately to plaintiff's injuries, the defendants would be liable. Nor do we find that this issue was presented to the jury in any of the other instructions. The...