Conklin v. Walsh
| Decision Date | 11 May 1948 |
| Docket Number | 7090 |
| Citation | 113 Utah 276,193 P.2d 437 |
| Court | Utah Supreme Court |
| Parties | CONKLIN et al. v. WALSH et al |
Appeal from Third District Court, Salt Lake County; A. H Ellett, Judge.
Action by Clifford E. Conklin and others against A. H. Walsh, doing business as A. H. Walsh Plumbing Company, and another, to recover for damages to the named plaintiff's automobile resulting from a collision with the defendant company's truck, wherein the defendants filed a crosscomplaint. Judgment for the named plaintiff and the defendants appeal.
Judgment affirmed.
J Grant Iverson, of Salt Lake City, for appellants.
Arthur H. Nielsen, of Salt Lake City, for respondent.
Appeal from a verdict by the district court in favor of the plaintiff and respondent, and against the defendants and appellants in an action for damages to the plaintiff Conklin's automobile resulting from a collision with defendant company's truck. All but $ 50.00 of the loss suffered by the plaintiff was paid by the Pacific Automobile Insurance Company under the terms of a $ 50.00 deductible automobile collision insurance policy. On motion of the defendant, the insurance company was made a party plaintiff to the action, it being the real party in interest under its right of subrogation. Asenath S. Conklin, wife of Dr. Conklin, and the driver of his car at the time of the accident, was joined as a party defendant in the cross-complaint. The suit was first tried in the City Court of Salt Lake City, where judgment was rendered in favor of the respondent and against the appellants. Upon appeal to the district court the case was tried before a jury. When both sides had rested, the court directed a verdict in favor of the plaintiff, Clifford E. Conklin, and against the defendants. In so directing the verdict, the court concluded that both drivers were guilty of negligence, but that Mrs. Conklin was not an agent or servant of her husband the plaintiff, and therefore her negligence was not imputable to him. The two principal questions raised on this appeal are: (1) Did the trial court err in finding that the defendant Robert A. Walsh was negligent as a matter of law? And (2) Did the trial court err in finding that Mrs. Conklin was not the agent or servant of her husband in the operation of his automobile?
The collision out of which this action arises occurred March 9, 1946, at about 11:00 a. m. in Salt Lake City on South Temple Street where it is intersected by "O" Street from the north and by 10th East Street from the south. South Temple is the arterial highway and is 60 feet wide; "O" Street is 30 feet wide, and 10th East Street is 72 feet wide. The west curb of 10th East is offset three feet to the east from the west curb line of "O" Street. The stop sign for southbound traffic on "O" Street is located 18 feet north of the north curb line of South Temple, and south of the sidewalk. The north side of the sidewalk is 32 feet north of the South Temple curb line. The Conklin residence is situated on the northwest corner of this intersection. Approximately 73 feet back of their house is a garage facing on "O" Street in which the automobile in question was customarily kept.
On the morning of the accident Mrs. Conklin, driving her husband's car with his permission, was taking their daughter and a neighbor's child to a dancing lesson. Mrs. Conklin was at first unable to start the car because of a dead battery, and so, called a man from a nearby service station to come and assist. After starting the car, the man from the service station sat in his truck parked north of the Conklin garage, and watched while Mrs. Conklin drove down "O" Street into and across South Temple, where the collision occurred. The evidence was undisputed that she stopped before entering the intersection, but as to the exact point at which she stopped, the evidence is in conflict. She testified at first that she stopped "right at the stop sign" but later admitted that in the city court she testified that she stopped at the sidewalk which is 12 to 14 feet north of the stop sign. Be that as it may, she testified that after stopping and looking both ways, and seeing no traffic coming from either direction, she proceeded across the intersection looking straight ahead, without ever again looking to the left or to the right.
The evidence as to defendant Robert A. Walsh's operation of the truck was that he was driving east along South Temple at a speed variously estimated at from 30 to 45 mph. According to his testimony, he first saw the Conklin automobile when it was just north of the stop sign approaching the intersection at a speed of 10 to 15 mph, at which time his truck was approximately a quarter of a block west of the intersection. Walsh looked to the right to see if there was any traffic approaching from the south along 10th East Street and did not look again to the north to observe the position and movement of the Conklin automobile until it was about the middle of the intersection. As he described it, "When I looked back, she was almost in front of me." Upon seeing the Conklin car immediately in front of him or almost so, he turned his vehicle to the right but was unable to avoid the collision.
Appellants argue that even though the court might have found as a matter of law that Robert A. Walsh was negligent in the operation of his truck, the question of whether or not that negligence proximately contributed to the collision should have been submitted to the jury, citing Hess v. Robinson et al., 109 Utah 60, 163 P. 2d 510. In that case the plaintiff, traveling an arterial highway, collided with defendant's ambulance, which came into the intersection without stopping for the stop sign. The plaintiff admitted that he never saw the ambulance prior to the impact, but this court held that even had the plaintiff looked and seen the ambulance approaching, he might have reasonably concluded that it would stop before entering the intersection; and that therefore there was a question for the jury as to whether the plaintiff's negligence was a proximate cause of the collision. Appellant seeks to rely on that case for support, pointing out that in the case at bar the defendant Walsh saw the plaintiff's car approaching the intersection and reasonably concluded that the plaintiff's driver would stop at the stop sign and wait for him to pass.
The holding in Hess v. Robinson does not sustain the appellants here because of the difference in the facts of the two cases. In the Hess case the vehicle entered the arterial highway from the right of the favored driver. The driver of the car traveling the through street even though he should have seen the ambulance, which according to the evidence was traveling at some speed between 25 and 50 mph, he could not know it would not stop for the stop sign until the vehicles were so close together that he would have no chance to avoid the collision. In the case at bar the car entering from the side street came from the left of the driver traveling the arterial highway, and at a speed of only 10 to 15 mph. From a point somewhere between 18 and 32 feet north of the curb line of the through street, to the point of impact which was nearly three-fourths of the way across the through street, plaintiff's car was continuously visible to the driver traveling the arterial highway. Defendant's truck driver, knowing there was a car approaching from the north, never again looked in that direction until it was too late to avoid a collision. By his own admission the truck driver travelled at least one quarter of a block without making any further observation of a car which, at the time he first saw it,...
To continue reading
Request your trial
-
Galarowicz v. Ward, 7501
...493, for cases developing this rule. The principle has been considered even more recently, however, in the case of Conklin v. Walsh, 1948, 113 Utah 276, 193 P.2d 437, 440. In this latter case, Dr. Conklin sued Walsh for damages to his automobile arising out of a collision between the Walsh ......
-
Johnson v. Syme
...P.2d 350; Sine v. Salt Lake Transportation Co., 106 Utah 289, 147 P.2d 875; Hickok v. Skinner, 113 Utah 1, 190 P.2d 514; Conklin v. Walsh, 113 Utah 276, 193 P.2d 437 and Gren v. Norton, 117 Utah 121, 213 P.2d 356.6 Hess v. Robinson, 109 Utah 60, 163 P.2d 510; Lowder v. Holley, 120 Utah 231,......
-
Martin v. Stevens
...supra; Sine v. Salt Lake Transportation Co., 106 Utah 289, 147 P.2d 875; Hickok v. Skinner, 113 Utah 1, 190 P.2d 514; Conklin v. Walsh, 113 Utah 276, 193 P.2d 437; and Gren v. Norton, Utah, 213 P.2d 356, as cases where a driver was held guilty of contributory negligence as a matter of law f......
-
Gibbs v. Blue Cab, Inc.
...v. Cartwright, Utah, 229 P.2d 871; Bullock v. Luke, 98 Utah 501, 98 P.2d 350; Hickok v. Skinner, 113 Utah 1, 190 P.2d 514; Conklin v. Walsh, 113 Utah 276, 193 P.2d 437; Gren v. Norton, Utah, 213 P.2d 356.1 Sec. 27E2, Ogden City Ordinances; Title 57-7-154, U.C.A.1943.2 North v. Cartwright, U......
-
Article
...West American Insurance was the real party in interest even though the suit was brought in the name of the insured); Conklin v. Walsh, 113 Utah 276, 193 P.2d 437 (Utah 1948). Hence, the insured p arty of the plaintiff–insurance company, when a claim has been paid in full, is not a party to ......