Cox v. Thompson

• Decision Date: 23 March 1953
• Docket Number: No. 7796,7796
• Citation: 123 Utah 81,254 P.2d 1047
• Parties: COX, v. THOMPSON.
• Court: Utah Supreme Court

Page 1047

254 P.2d 1047

123 Utah 81

COX, v. THOMPSON.

No. 7796.

Supreme Court of Utah.

March 23, 1953.

Brant H. Wall and Jay Elmer Banks, Salt Lake City, for appellant.

Stewart, Cannon & Hanson and Edward M. Garnett, Salt Lake City, for respondent.

WOLFE, Chief Justice.

About 1:30 a. m. January 21, 1951, Jackson Blaine Cox while crossing U. S. Highway 91 in Orem, Utah was struck and fatally injured by an automobile driven by Cyril P. Thompson, defendant. Plaintiff, Norma D. Cox, his widow, as administratrix of his estate, brought this action against defendant Thompson to recover damages for the wrongful death of her husband. The trial court directed a verdict for defendant on the grounds that decedent was contributorily negligent as a matter of law, and as a matter of law, his negligence proximately contributed to his death. Plaintiff appeals.

The grounds for her appeal are three in number. (1) The trial court erred in finding decedent contributorily negligent as a matter of law because (a) decedent is presumed to have been acting with due care and such presumption was not overcome and (b) decedent's contributory negligence was a question of fact improperly withheld from the jury. (2) Assuming decedent was negligent, the question of whether his negligence proximately contributed to his death was a question of fact erroneously withheld from the jury. (3) The trial court erred in failing to submit the case to the jury on the theory of last clear chance.

If the presumption that a person in a place of danger exercises due care for his own safety applies in this case, it will be extinguished if the evidence properly sustains the finding that decedent was contributorily negligent as a matter of law. See Tuttle v. Pacific Intermountain Express, Utah, 242 P.2d 764; Compton v. Ogden Union Ry. & Depot Co., Utah, 235 P.2d 515; Mingus v. Olsson, 114 Utah 505, 202 P.2d 495; Clark v. Los Angeles & Salt Lake R. Co., 73 Utah 486, 275 P. 582; Ryan v. Union Pac. R. Co., 46 Utah 530, 151 P. 71; Evans v. Oregon Short Line R. Co., 37 Utah 431, 108 P. 638. Contributory negligence becomes a question of law when from the facts reasonable men can draw but one inference and that inference points unerringly to the negligence of decedent as contributing to his death. Compton v. Ogden Union Ry. & Depot Co., supra; Lewis v. Rio Grande Western R. Co., 40 Utah 483, 123 P. 97.

In determining whether decedent was contributorily negligent as a matter of law, the evidence, and all reasonable inferences therefrom, must be viewed in the light most favorable to plaintiff. Finlayson v. Brady, Utah, 240 P.2d 491; Mingus v. Olsson, supra.

The accident took place in Orem, Utah on U. S. Highway 91 (which runs approximately north and south) from fifty to one hundred feet north of the point where Center Street running east and west, intersects and terminates with that highway. The highway is 96 feet wide and has six lanes, the eastern three for northbound traffic. The center of the highway is marked by two sets of double lines with a neutral zone of three or four feet between the sets. The eastmost of the three western lanes is marked 1 followed by 2 and 3 proceeding westward. (See diagram) Each of lanes one and two has a width of twelve feet. Lane three has a width of twenty-five feet. To the north of Center Street and west of the highway is the Crown Cafe surrounded by its parking area. To the north of Center Street and east of the highway, and almost directly across from the Crown Cafe is the Orem City Hall. The road is straight and unobstructed. There are no cross-walks nor traffic control devices in the immediate area.

About 1:30 a. m. Mr. and Mrs. Cox (decedent and plaintiff) with Mr. and Mrs. Ferre left the lounge of the Crown Cafe to go home. Two couples whom they had expected to join them there had not arrived. At the moment they left the cafe the overdue friends drove into the surrounding parking area. The group, with the exception of the decedent started to return to the cafe.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Mrs. Ferre testified that Mr. Cox announced, 'I am going home.' She testified she told plaintiff that decedent was leaving. She further testified, 'We [Mrs. Ferre and plaintiff] turned around, [decedent was walking east across U. S. 91] and I asked him to please come back, and I'd get Alma [Mr. Ferre] to take him home in the car. And Mrs. Cox hollered and told him to come back.'

Mrs. Cox (plaintiff) testified that at the moment the group started to return to the cafe Mrs. Ferre said to her, 'Are you leaving. --Are you going? Jack (decedent) is leaving.' Mrs. Cox testified that she glanced up and saw decedent walking across U. S. 91 going east, apparently on his way home. He was at a point 6 or 7 feet east of the double lines marking the center of the road. (See circle marked 'A' on the diagram.) Mrs. Cox testified that she called to him, 'Come on back. If you are going home, we will go in the car.' She observed him turn and start to walk west toward them. She looked away from decedent and then 'heard the screech of brakes and knew that something had happened.' At that moment the deceased was struck by the automobile proceeding south. Neither Mrs. Cox nor Mrs. Ferre observed the impact, nor the car prior to the impact. They heard no horn.

Mr. Alma Ferre when in the cafe missed his wife and a moment before the accident returned outside. As he stood at the front of the cafe ('F' on diagram) he observed over the top of his automobile which was parked there, Mr. Cox returning from the east to the west side of the highway. He testified that he first observed him at the spot indicated by the circle marked 'A' on the diagram--6 or 7 feet east of the middle of the highway. He testified that he watched decedent on his way back to the point of impact, may have glanced away from him for a second or two, and then observed the 'flash of the impact' as it occurred and 'seen Jack (decedent) go in the air and land on the cement.' He approximates the point of impact at about the dividing line between lanes one and two and marked with an 'X' on the diagram. He observed no car prior to the impact.

Defendant, Cyril P. Thompson, and his two companions, Leon Wimber and Karl Smith, were traveling from Salt Lake to Springville in a late model Hudson automobile. They were traveling south about 35 to 40 miles per hour in lane number two. All three were in the front seat, defendant driving, Wimber on the right (west) and Smith in the middle. The lights of the car were dimmed to city driving intensity.

Wimber testified, '* * * I saw a dark shadow step from the left hand side of the automobile which was on the east of us, directly into our lights from the side. He stepped from the side into our lights. I saw a person move, from the east to the west, into our lane of traffic.' Wimber was asked, 'And how far did he get into your lane of traffic, the last time you saw him there?' He answered, 'Half way across approximately.' Wimber stated Cox appeared to be, '* * * approximately 15 feet ahead of the car.' He testified that the car swerved sharply to the east and the impact between the car and decedent took place in the lane of traffic in which the car had been moving.

Smith testified that the car was traveling in lane number two. He further said, 'I looked up just about the time we started swerving, and there was a pedestrian and he appeared to be about 15 feet in front of us. * * * He [decedent] appeared to be in the middle of the southbound lane, and at the time of the impact, it [the car] just seemed to pick him up and just drop him off to the side of the fender.'

Cyril P. Thompson, defendant, and driver of the automobile testified that the first thing he noticed was decedent stepping into the lights of his automobile. Decedent was headed west across the street. He was asked, 'When you first saw this silhouette in front of you, I will ask you how far ahead of you it was, appeared to be, as far as your vision was concerned?' He answered, 'Well, I could see the full length of him, and possibly--probably two or three feet of highway. I couldn't specify as to how much highway, but I could see the full height of the man.'

When Mr. Thompson observed decedent 'stepping to the west' he 'immediately swerved the car to the east. * * *'

Decedent was struck by the right front (west) fender of the Thompson car as it swerved to the east. He was lifted onto the hood and dropped off the right side. Cox was dressed in dark clothing. There is testimony by one of the officers who investigated the accident that there was a dark area on the highway at the spot where the accident occurred. Officer Peters who investigated the accident, noted that decedent's breath smelled of liquor. There is evidence that Cox had consumed at least 4 drinks of liquor during the evening.

Small pieces of chrome, broken from the automobile grill, were found in lane two from three to five feet north of Cox's body. There appears to be a slight conflict in the evidence as to the position of decedent's body on the highway after the accident. Officer Peters who investigated the accident and took measurements places the body at a spot approximately fifty feet north of the Center Street north sidewalk and on the line which separates lanes one and two. (Marked 'Z' on diagram) Mrs. Cox testified that she really couldn't tell but placed the position of the body just west of the center of the highway and several yards south of the spot indicated by Peters. (Marked 'Y' on diagram)

Plaintiff argues that there is a conflict in the evidence as to the exact point of impact. She claims such a conflict if resolved in favor of decedent, would be highly probative of his non-negligent conduct. She contends that the question is a factual one which should properly have been submitted to the jury. Mr. Alma Ferre, as stated before, approximated the point of impact as...