Christensen v. Utah Rapid Transit Co

• Citation: 83 Utah 231,27 P.2d 468
• Decision Date: 04 December 1933
• Docket Number: 5292
• Court: Supreme Court of Utah
• Parties: CHRISTENSEN v. UTAH RAPID TRANSIT CO

27 P.2d 468

83 Utah 231

CHRISTENSEN v. UTAH RAPID TRANSIT CO

No. 5292

Supreme Court of Utah

December 4, 1933

Appeal from District Court, Second District, Weber County; Geo. S Barker, Judge.

Action by Dean K. Christensen against the Utah Rapid Transit Company. Judgment for defendant, and plaintiff appeals.

REVERSED AND REMANDED, WITH DIRECTIONS TO GRANT NEW TRIAL.

O. W Moyle and O. W. Moyle, Jr., both of Salt Lake City, for appellant.

A. W Agee, of Ogden, for respondent.

FOLLAND, J. STRAUP, C. J., and ELIAS HANSEN, EPHRAIM HANSON, and MOFFAT, JJ., concur.

OPINION

FOLLAND, J.

This is an action for damages to plaintiff's automobile which was injured by being driven over a switch standard located between defendant's railroad tracks in about the center of Washington avenue near Second street, in Ogden, Utah. The cause was tried to a jury in the district court of Weber county. At the close of the evidence plaintiff and defendant each made a motion for a directed verdict. The motion of plaintiff was denied, and that of defendant granted. From a judgment in favor of defendant entered upon the directed verdict of no cause of action, plaintiff appeals.

The facts briefly stated are that after dark at about 9 o'clock in the evening of January 14, 1930, plaintiff was driving his Ford car south on Washington avenue approaching Second street. At that point the street is within the corporate limits of Ogden City, but is a continuation of the main state highway extending north and south through the state. It is a street well traveled at all times. The center of Washington Avenue is occupied by two lines of defendant's car tracks. The street is 132 feet wide between property lines, with 30 foot strips of pavement on either side of the double line of car tracks. When the street was paved a coping or curb was constructed at the edge of the pavement about 2 feet outside of the outer rails of the tracks. Prior to the accident, this coping had been removed by the city and the railroad right of way filled in with dirt and gravel about level with the top of the rails. The switch was located between the tracks a short distance north of the intersection of Second street and Washington avenue. It had a round iron standard about 1 1/4 inches in diameter which extended 18 inches above the level of the ground. The switch standard was 40 feet 9 inches from the west curb of the pavement. The west rail of the west track is 32 feet 6 inches from the west curb. On the night of the accident a coating of packed snow covered the ground and pavement. The tracks had theretofore been swept by a rotary broom sweeper of the railroad company which threw the snow onto the pavement. The rotary sweeper was followed by plows operated by the city which pushed the snow toward the curb and left it in piles about 5 feet in height near the west curb of the street. The width of this pile of snow was estimated by defendant's witnesses as extending from 3 to 5 feet out into the street from the curb, and plaintiff estimated it as extending more than 10 feet. An automobile was parked on the street between the car tracks and the pile of snow at the curb, which plaintiff claimed made it necessary for him to drive onto the railroad right of way. Plaintiff testified that in the center of the street there was a ridge of snow, which had not been moved by the plows, of about 10 inches in height, and that the switch standard projected upward through the snow. Defendant's witnesses testified that the snow had been cleared off for approximately 4 feet around the switch standard. Plaintiff drove his car into the center of the street and over the switch standard, which he said he could not see because of the snow, thereby striking his automobile, bending the front axle, and otherwise damaging the car. The switch standard was unlighted; that is, there was no light on it to warn travelers of its presence.

The assignments of error go to the following points: (1) That defendant's motion for a directed verdict did not state any grounds for the motion, and that the grounds stated by the court in directing the verdict for defendant did not specifically state the grounds or reasons, for granting the motion; (2) error of the court in granting the motion on the ground that defendant was not negligent in any of the respects alleged by plaintiff and relied on by him for recovery; (3) error of the court in granting the motion on the ground that plaintiff was guilty of contributory negligence in failing to keep a proper lookout in driving off the paved portion of the highway into the center of the street; and (4) refusal of the court to admit certain evidence offered by the plaintiff.

In making its motion for a directed verdict the defendant did not specify any grounds in support thereof, but the court, in announcing his decision with respect to the motions, made the following statement:

"I am going to state for the benefit of counsel the ground upon which the court directs this verdict. I am simply doing this for the benefit of counsel. In my opinion there is no competent evidence to show that the defendant was negligent in any of the respects alleged by the plaintiff and relied upon by him for recovery in this action. The evidence tends to show, it seems to me, that the plaintiff, Mr. Christensen, was himself guilty of negligence, in that he was careless and negligent in the operation of his automobile, without keeping a proper lookout ahead, for if he had, it seems to me that he should have seen the obstruction which he says he struck with his car. He was further negligent from the fact that he drove off the paved and traveled portion of Washington Avenue and onto and over the street car track of defendant company, and onto and over the unpaved and untraveled portion of said Washington Avenue. If it is contended or maintained that the defendant is guilty of negligence, then I am clearly of the opinion that it must be held that the plaintiff is himself guilty of contributory negligence. Upon these grounds I am going to direct the jury to bring in a verdict in favor of the defendant."

The objections that defendant did not state any grounds in its motion for a directed verdict, and that the grounds stated by the court are insufficient because not specifically pointing to the particular defects relied on, are decided against appellant's contentions in the case of Smalley v. Rio Grande Western R. Co., 34 Utah 423, 98 P. 311, 317. In that case, as here, defendant's motion for a directed verdict, which was sustained by the court, did not disclose any grounds for the motion, but the court in passing on the motion indicated the particular grounds upon which he based his decision. This was held to be sufficient to apprise opposing counsel of the grounds on which the verdict was directed, so that if the defects were curable counsel was in as good a position to supply the missing evidence as though the motion itself had specified the grounds. The court stated the rule as follows:

"This, however, does not mean that the movant of the motion or the court is required to state reasons supporting the grounds. If the grounds are sufficiently specified to call attention to the particular defects and the question of law on which the case is taken from the jury, that is all that is required. A mere general statement that, under the evidence, the plaintiff is not entitled to recover, or that the defendant is entitled to a verdict, or that the plaintiff has not made a sufficient case to go to the jury, does not point to anything. If, however, in a case of negligence a specification is made that the evidence is insufficient to show negligence on the part of the defendant, or that under the evidence the plaintiff is conclusively shown to be guilty of contributory negligence, or that he assumed the risk, etc., such a specification is ordinarily sufficient. If a verdict is directed on the ground that the evidence is insufficient to show negligence on the part of the defendant, it sufficiently is made to appear on what question of law the case was taken from the jury. The making of such a specification ordinarily points out the defect within the meaning of the adjudicated cases."

The grounds stated by the trial court comply with the requirements laid down in the Smalley Case, and were sufficiently specific to call attention to the particular defects and the questions of law on which the case was taken from the jury.

It is next contended by plaintiff that there was sufficient evidence on the issues of negligence of the defendant and of contributory negligence of plaintiff to take the case to the jury, and that the court erred in directing a verdict. The general rule applicable in considering the propriety of directing a verdict is that the court may not weigh the evidence or determine where the preponderance is but if there is some substantial evidence in support of the essential facts which the plaintiff is required to prove in order to entitle him to recover, or if the evidence and the inferences deducible therefrom are of a character which would cause reasonable men to arrive at different conclusions with respect to whether all the essential facts were or were not proved, the question is one of fact for the jury, and not one of law for the court. Robinson v. Salt Lake City, 37 Utah 520, 109 P. 817; Utah State National Bank v. Livingston, 69 Utah 284, 254 P. 781. Since the verdict is directed against plaintiff, we ordinarily, in considering and reviewing such a ruling, are required to take the testimony and the reasonable inferences deducible therefrom in the light most favorable to the plaintiff. Barlow v. Utah Light & Traction Co., 77 Utah 556, 298 P. 386. Defendant, however, argues that these...