Cintron v. Milkovich

• Decision Date: 16 May 1980
• Docket Number: No. 16440,16440
• Citation: 611 P.2d 730
• Parties: Rachel Armelinda CINTRON, Plaintiff and Respondent, v. Elma J. MILKOVICH, Defendant and Appellant.
• Court: Utah Supreme Court

Page 730

611 P.2d 730

Rachel Armelinda CINTRON, Plaintiff and Respondent, v. Elma J. MILKOVICH, Defendant and Appellant.

No. 16440.

Supreme Court of Utah.

May 16, 1980.

J. Kent Holland, Salt Lake City, for defendant and appellant.

L. L. Summerhays of Strong & Hanni, Salt Lake City, for plaintiff and respondent.

STEWART, Justice:

Plaintiff was awarded damages for injuries sustained in an automobile accident which occurred in February 1976 in Midvale, Utah. Defendant contends on appeal that (1) contrary to the jury's finding, she was not guilty of failing to yield the right of way, because plaintiff's vehicle was not an "immediate hazard," (2) the trial court erred in refusing to instruct the jury with respect to a city ordinance involving forfeiture of right of way, and (3) the court engaged in extensive examination of witnesses and thereby impaired defendant's right to a fair trial. We affirm.

The accident occurred at or near the intersection of Center and Allen Streets in Midvale. Plaintiff was westbound on Center Street, a four-lane divided highway. Defendant was northbound on Allen Street and turned left onto Center Street, also westbound. A stop sign controlled traffic approaching the intersection on Allen Street. Plaintiff observed defendant's vehicle first as it approached the stop sign and then as it proceeded into the intersection. When plaintiff realized that a collision was imminent, she braked and then swerved to the right. The cars collided, and both parties sustained personal injuries and property damage.

Plaintiff brought suit against defendant, and defendant counterclaimed. The matter was tried to a jury which found by special verdict that defendant had been negligent in failing to keep a proper lookout and in failing to yield the right of way to plaintiff. The jury also found plaintiff negligent for having failed to keep her vehicle under reasonably safe and proper control and for driving at a speed that was not safe and reasonable under the circumstances. The jury found defendant responsible for 60% and plaintiff 40% of the negligent conduct that caused the collision. Judgment on the verdict was rendered in favor of plaintiff in the amount of $9,991.53, and defendant's counterclaim was dismissed.

Defendant contends on appeal that, pursuant to § 41-6-72.10(2), Utah Code Ann. (1953), as amended, she was required to yield the right of way to plaintiff only if plaintiff's vehicle constituted an "immediate hazard." That statute provides in pertinent part:

(2) Except when directed to proceed by a police officer, every driver of a vehicle approaching the stop sign shall stop at a clearly marked stop line . . .. After having stopped, the driver shall yield the right of way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.

Defendant asserts that plaintiff's vehicle was not an immediate hazard on the basis of testimony that defendant was well into or through the intersection at the time of the collision.

Assuming the validity of that testimony, the conclusion does not follow that the vehicle approaching the intersection on Center Street was not an immediate hazard. In Richards v. Anderson, 9 Utah 2d 17, 20, 337 P.2d 59, 61 (1959), an intersection collision case, this Court stated that "(t)here is, of course, no precise set of measurements by which an immediate hazard can be gauged. It must be judged on the basis of common sense in the light of existing circumstances."

In the present case there was testimony that as defendant approached the intersection, she could see the highway where plaintiff was approaching, and that plaintiff should have been visible to defendant as defendant proceeded past the stop sign. Evidence was also presented as to the speed and location of the vehicles up to and after the time of the collision.

The following instruction was given to the jury regarding the existence of an immediate hazard:

You are instructed that an immediate hazard exists whenever a reasonably prudent person having stopped at the entrance to a through highway in obedience to a stop sign, would apprehend the probability of colliding with an oncoming vehicle on the through highway were he then to attempt crossing the said through highway.

Clearly there was evidence to support the jury's finding against the defendant on the issues of the existence of an immediate hazard and of defendant's negligence in failing to yield the right of way. The existence of conflicting testimony is of no warrant. It was the jury's prerogative to determine which evidence was to be credited and to draw reasonable inferences from that evidence, Marsh v. Irvine, 22 Utah 2d 154, 449 P.2d 996 (1969); of course we view the evidence in the light most supportive of the verdict. Johnson v. Cornwall Warehouse Co., 15 Utah 2d 172, 389 P.2d 710 (1964).

Defendant's second contention is that there was error in the court's refusal to give the following instruction:

Under the ordinances of Midvale City it is provided that the driver of any vehicle traveling at an unlawful speed shall forfeit any right of way he might otherwise have. If, therefore, you find from the evidence in this case that the plaintiff's vehicle was being driven at an unlawful speed, then I instruct you that the right of way which she might otherwise have had at such intersection...