Clay v. Dunford
| Decision Date | 24 January 1952 |
| Docket Number | No. 7705,7705 |
| Citation | 121 Utah 177,239 P.2d 1075 |
| Parties | CLAY, v. DUNFORD et al. |
| Court | Utah Supreme Court |
Joseph P. Bosone, A. H. Hougaard, Salt Lake City, for appellant.
Ray R. Christensen, Salt Lake City, for respondents.
Appeal from a judgment entered on a no cause of action verdict, in a suit for wrongful death instituted by the administrator of the deceased. The judgment is reversed and the cause remanded with instructions to grant a new trial.
For a number of years the deceased lived on the south side of 13th South Street, about 167 feet east of the intersection of 13th South and 3d East streets in Salt Lake City. Thirteenth South is 50 feet wide. The north 41 feet are hard-surfaced, being the part usually travelled. The south 9 feet, or the shoulder, are dirt and gravel, not ordinarily used for travel. On the clear, sunny afternoon of the accident, deceased had parked his station wagon facing east in front of his home, parallel with and not more than 1 foot from the sidewalk. The station wagon was 5 feet wide and there were 3 or 4 feet of shoulder between it and the hard-surfaced part of the street. After parking, deceased conversed shortly with a neighbor boy, stepped out of his station wagon, faced east and either bumped into the side of defendants' eastbound truck or was struck by the latter not more than 2 feet north of the station wagon, while on the shoulder of the street. A motorist travelling west, about 60 or 70 feet to the east, saw the accident and said the deceased had just stepped out of his station wagon when he was struck by the truck, which knocked him over the left front fender of the station wagon. The deceased was found lying about 37 feet east thereof near the south sidewalk.
The truck had rounded the intersection in a wide arc and travelled the 167 feet on the shoulder in second gear at about 20 miles per hour, gaining speed the while. It came in contact with the deceased while at least a portion of the truck was on the shoulder still travelling in an arc slightly left oblique of parallel with the station wagon the driver, who had an unobstructed view ahead testified that he saw the station wagon but not the deceased and that he felt a thud which prompted him to stop and investigate. The handle of the station wagon door was bent, an outside rear vision mirror was knocked off, a slight dent was made in the hood and brush marks appeared along the fender of the station wagon.
The truck had dents in the right door post about 5'9" above the ground and there were blood spots and pieces of flesh about that point, according to the experts. The deceased, bleeding profusely, had a wound over his left eye. There were some slight variations in the testimony as to measurements, but those stated herein are most favorable to the defendants.
Instructions were given on contributory negligence and on assumption of risk. Plaintiff complains of the latter and we believe, as he contends, that giving the same was prejudicial error. The instruction was as follows:
'You are instructed that a person cannot deliberately incur an obvious risk of personal injury, particularly when there is a safe course of action open to him, and then hold the author of the danger liable in damages for any injuries sustained.
'If you find from the evidence in this case, that the deceased, Arnold Kartchner, placed himself in a position of obvious peril when there was no reasonable justification therefor, then the said Arnold Kartchner is deemed to have assumed the risk of his course of conduct and your verdict must be in favor of the defendants and against the plaintiff, no cause of action.'
We believe the verdict reached by the jury could have been arrived at as a result of this instruction, even though the jury may have concluded that the defendant was negligent and the deceased was not guilty of contributory negligence. All of the cases cited involve the question of contributory negligence, none touches squarely on the issue of assumption of risk, most of them pertain to the case of a pedestrain who knowingly but carelessly walks into the path of moving traffic on regularly travelled portions of the highway, and none is analogous to this case.
The texts referred to by defendant in support of its position that the deceased assumed the risk, do not seem to bear out such position. They say that 'The doctrine of assumption of risk in an action between persons not master and servant, or not having relations by contract with each other, is confined to cases where the plaintiff not only knew and appreciated the danger, but voluntarily put himself in the way of it', 1 and that 'The essential elements of assumed risk are knowledge, actual or implied, by the plaintiff of a specific defect or dangerous condition caused by the negligence of the defendant in the violation of some duty owing to the plaintiff, * * * together with the plaintiff's appreciation of the danger to be encountered and his voluntary exposure of himself to it.' 2 They also clearly set forth the distinctions between the doctrines of assumption of risk and contributory negligence.
The uncontroverted evidence showed that at the time of the accident the deceased was standing on the shoulder of the highway where vehicles ordinarily do not travel, with his back turned to the oncoming truck, completely negativing knowledge or appreciation of the specific danger, and negativing any intention voluntarily to expose himself to a known danger,--elements which must be established before the defense of assumption of risk is applicable.
The defense of assumption of risk as a legal concept requires that the plaintiff must have looked, must have seen and must have known of a danger voluntarily subjecting himself thereto and consenting that if injury result, he who may have...
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