Christiansen v. Utah Transit Authority, 17250

• Decision Date: 15 June 1982
• Docket Number: No. 17250,17250
• Parties: Harry J. CHRISTIANSEN, Plaintiff and Appellant, v. UTAH TRANSIT AUTHORITY and John G. Miller, Defendants and Respondents.
• Court: Utah Supreme Court

Page 42

649 P.2d 42

Harry J. CHRISTIANSEN, Plaintiff and Appellant, v. UTAH TRANSIT AUTHORITY and John G. Miller, Defendants and Respondents.

No. 17250.

Supreme Court of Utah.

June 15, 1982.

Edward T. Wells, David K. Robinson, Salt Lake City, for plaintiff and appellant.

Timothy R. Hanson, Salt Lake City, for defendants and respondents.

HOWE, Justice:

This suit arose from a traffic accident between an automobile driven by plaintiff Harry J. Christiansen and a bus owned by defendant Utah Transit Authority (UTA) and driven by defendant John G. Miller. The jury found that the plaintiff had sustained special damages (medical expenses and lost wages) of $7700.00 and general damages (pain and suffering) of $5000.00. The jury also found the plaintiff to have been 70% negligent and UTA and Miller to have been 30% negligent. Because § 78-27-37, U.C.A. 1953 bars recovery by a plaintiff when his negligence is equal to or greater than that of the defendants, the court entered a judgment of "no cause of action" in favor of the defendants. Plaintiff brings this appeal seeking reversal of the judgment, a new trial and an order allowing him to amend his complaint to add additional defendants and to seek punitive damages.

Christiansen contends that the jury's verdict was the result of sympathy, bias, passion and prejudice and was contrary to the clear weight of the evidence. He also asserts that the trial court erred in refusing to grant him a default judgment against Miller when Miller failed to appear at the trial; in refusing to give the jury one of his requested instructions but instead giving instructions to which he objected; in refusing to instruct the jury on the consequences of their apportionment of negligence; and in refusing to grant his motion to amend the complaint in order to plead wilful and wanton negligence and seek punitive damages.

At about 6:30 in the evening of January 17, 1978 Miller was travelling southbound in the righthand lane on 7th East in Salt Lake City amid moderately heavy traffic. Christiansen was also travelling in the same direction in a middle lane and as he approached a red light at the 2100 South intersection, he changed into the righthand lane ahead of the bus and came to a stop. Miller applied his brakes but ran into the rear of Christiansen's vehicle. Christiansen testified that he turned into the right lane between one-half block to one block before the intersection, and that he continued in that lane until he stopped about ten feet behind another bus which had stopped at the 2100 South bus stop located 94 feet north of the intersection. He claimed that the bus which hit him was about one-half block behind him when he pulled into the right lane, and that he had been stopped for more than a minute when it struck him.

Miller's version of the facts was that Christiansen pulled into the right lane only 25 to 30 feet ahead of the bus. Miller thereupon applied the brakes in an attempt to slow down and increase the distance between the bus and the car. He testified that he did not apply the brakes with much force because that would have thrown passengers out of their seats. Suddenly the brake lights of the Christiansen vehicle came on and the vehicle made a "quick stop" approximately 50 feet behind the bus which was stopped ahead at the 2100 South bus stop. Christiansen explained that he did not stop close to the bus ahead of him because he did not want to be in its exhaust. Miller attempted to make a "panic stop" but hit the Christiansen car forcing it forward 40 feet, but not far enough for it to hit the bus which had stopped ahead.

Christiansen hit his head as he was thrown forward. Miller went to Christiansen's car window, talked with him, and then radioed a UTA supervisor to come to the scene of the accident. After talking with the UTA supervisor and exchanging information with Miller, Christiansen drove his automobile to his home. The police were not called and they made no investigation. At the trial Christiansen claimed that he had been injured but that he had been too dazed to mention his injury, either at the scene of the accident or later when he went to the UTA offices to report that he had noticed additional damage to his vehicle.

Christiansen and Miller differed in their recollection of some of the details of the accident and subsequent conversation. However, at the trial Christiansen introduced Miller's deposition which he relied upon, particularly Miller's statement therein that the brakes on the bus were "spongy." This supported Christiansen's theory that the accident occurred as a result of UTA's negligence in allowing the bus on the road with improperly working brakes and that Miller was negligent in following too closely. Although Miller did not appear at trial (he had left UTA's employ), he was represented by counsel for UTA who defended the safe condition of the brakes and Miller's actions. UTA's theory of the case was that Christiansen's manuever of pulling in front of the bus and stopping abruptly was negligent under the circumstances and the cause of the accident. There is testimony in the record which supports both theories.

Christiansen contends that the verdict is contrary to the clear weight of the evidence. Our scope of review in a law case does not permit us to determine that question. The Constitution of Utah, Art. VIII, Sec. 9 limits our review in cases at law to questions of law and thus we will not disturb a jury verdict on a factual question which is supported by any competent evidence. Uinta Pipeline Corp. v. White Superior Co., Utah, 546 P.2d 885 (1976); Nelson v. Peterson, Utah, 542 P.2d 1075 (1975); Weber Basin Water Conservancy District v. Skeen, 8 Utah 2d 79, 328 P.2d 730 (1958). That test is met here. Also, Christiansen's contention that the verdict was a result of sympathy, bias, passion and prejudice must fail. He has not shown us any evidence of such feelings and there is nothing about the verdict itself which suggests that it was the product of such feelings.

Christiansen's contention that it was error to refuse him a default judgment against Miller when he failed to appear at trial is without merit also. First, Miller was represented by UTA counsel at trial. The case was tried on the merits without any objection by Christiansen. Secondly, Christiansen chose to move for admission of Miller's deposition in lieu of his appearance. He did not move for a continuance of the trial based upon having been misled by UTA that Miller would be there. Nor did he establish that he had relied upon assurances by UTA of his appearance. Thirdly, Christiansen's own drafting of the "Motion to Permit Use of Defendant Miller's Deposition in Lieu of Defendant's Appearance" suggests that he was not misled nor prevented from attempting to have him testify at trial. The motion explains that UTA notified Christiansen of the difficulty being experienced in obtaining Miller's cooperation and UTA's attempt but inability to subpoena him for trial. Finally, Christiansen points to no precedent that would justify awarding him a default judgment. Rather, it appears that in carrying the burden of his case, Christiansen simply chose the strategy of using Miller's deposition at trial and failed in that strategy. This does not constitute error.

Christiansen next contends it was error for the court to refuse to give the jury one of his requested instructions and to instead give instructions to which he objected. The court refused to give Christiansen's Requested Instruction No. Eight:

If you should find that it was within the power of the parties to produce stronger and more satisfactory evidence than that which was offered on a material point, you may view with distrust any weaker and less satisfactory evidence actually offered by him on that point; unless such failure is satisfactorily explained.

Christiansen asserts that the court's refusal to give this instruction precluded him from arguing to the jury that UTA's failure to produce Miller, his supervisor on the date of the accident, and the mechanic who repaired the brakes of the bus following the accident, all witnesses with first hand knowledge, should be viewed critically.

However, neither the absence of Requested Instruction No. 8 nor the instructions which were given precluded Christiansen from arguing to the jury how it should view the evidence. Furthermore, it was Christiansen's burden as plaintiff to prove his basis for recovery. The witnesses which Christiansen claims UTA should have called apparently would have bolstered Christiansen's case, but UTA had no obligation to call its personnel and former personnel as witnesses for that purpose. Judging by the verdict, it...