Dalley v. Mid-Western Dairy Products Co.

• Decision Date: 19 October 1932
• Docket Number: 5154
• Citation: 15 P.2d 309,80 Utah 331
• Court: Utah Supreme Court
• Parties: DALLEY v. MID-WESTERN DAIRY PRODUCTS CO. et al

15 P.2d 309

80 Utah 331

DALLEY v. MID-WESTERN DAIRY PRODUCTS CO. et al

No. 5154

Supreme Court of Utah

October 19, 1932

Appeal from District Court, Fifth District, Iron County; Le Roy H Cox, Judge.

Action by R. S. Dalley against the Mid-Western Dairy Products Company and another. Judgment of dismissal, and plaintiff appeals.

AFFIRMED.

Shay &amp Shay, of Cedar City, and Willard Hanson, of Salt Lake City for appellant.

Clark, Richards & Bowen, of Salt Lake City, for respondents.

ELIAS HANSEN, J. CHERRY, C. J., and FOLLAND, J., concur. STRAUP, J., EPHRAIM HANSON, J., dissenting.

OPINION

ELIAS HANSEN, J.

This is an action to recover damages for injuries sustained by plaintiff in a collision between his automobile and a truck owned by the defendant Mid-Western Dairy Products Company. Joseph N. Smith was made a party defendant because he is alleged to have been in charge of the truck at the time complained of. At the conclusion of plaintiff's evidence defendants moved for a nonsuit. The motion was granted and the action dismissed. Plaintiff appeals and assigns as error the order granting the motion for a nonsuit and the judgment of dismissal. No other error is assigned.

The negligence charged in plaintiff's complaint is that on July 5, 1930, at about the hour of 12:30 a. m. defendants left a truck, without lights in front or rear, standing on the traveled portion of the Zion Park Highway, U.S. No. 91, in Iron county, Utah. The injuries concerning which plaintiff complains were sustained by him on account of his running into the truck while he was driving his automobile along the highway. As a defense to the action defendants charged plaintiff with contributory negligence. The motion for a nonsuit was upon the ground that plaintiff's evidence showed, as a matter of law, that at the time of his alleged injury he was either operating his automobile without lights as are prescribed by law, or he was not keeping a lookout ahead. According to plaintiff's testimony he received the injuries complained of in the manner and under the circumstances following: On the night of July 4, 1930, at about 10:30 p. m. plaintiff left St. George, Utah, for Cedar City, Utah; he drove a Ford coach, model A; he was alone in the car; he traveled on the main highway, the same being the Zion Park Highway, U.S. 91; his car was equipped with good lights and four-wheel brakes; the lights on the car would disclose ordinary objects about 200 feet ahead and would also disclose objects 10 feet to the side of the road at a distance of 100 feet ahead; the brakes on his car were in good condition; the highway over which he traveled was oiled; from Kanarra, Iron county, Utah, to Cedar City, Iron county, Utah, the highway runs north and south; the traveled portion of the highway was about 20 feet wide; it was smooth and level; about 1 1/2 or 2 miles north of Kanarra he suddenly ran into a truck striking it in the rear on the lefthand side; he did not see the truck until he was within 15 or 20 feet from it; there were no lights on the rear of the truck and so far as he observed there were no lights on the front; as he approached the place where the truck was standing, he was keeping a constant lookout ahead; just before he struck the truck he was traveling on the right side of the road, the truck was on the right side of the road; when he first saw the truck he was traveling about 25 miles per hour; the lights of his car did not reveal the truck until he was within 15 or 20 feet from where it was standing; if the truck had been equipped with a lighted tall-light he would have been able to see the truck in time to stop or turn out; the truck was a stake body truck, painted yellow; he could not see the truck at a greater distance because it was painted yellow; part of the truck was standing on the east side of the traveled portion of the road; its rear end extended out about 5 1/2 feet onto the oiled portion of the highway; no part of the truck extended to the middle of the oiled portion of the highway; the truck was facing northerly in the general direction that plaintiff was traveling; it was standing at an angle of about 20 degrees easterly from the north and south course of the highway; the road over which he was traveling was straight for a mile or more before he reached the place where the truck was standing, and it was also straight for a mile beyond where the truck was standing; there was nothing to obstruct his view; he met no one and no one passed him in the vicinity of where the truck was standing; the highway over which he was traveling was much frequented; he was aware that there may be persons walking or riding on horseback, or in horse-drawn vehicles along the highway; when he first saw the truck he applied his brakes and attempted to turn to the west or left side of the truck but was unable to do so; he had been driving an automobile almost daily for eleven years; he believed he could bring his car, traveling at the rate of 25 miles per hour, to a dead stop in a distance of 50 feet; if he had seen the truck 40 feet away he could have stopped his car or have so turned it as to avoid the collision; he was unable to stop or turn his car so as to avoid the collision after he discovered the truck; he did not anticipate any truck would be parked on the highway; he did not know what happened after the collision because he was rendered unconscious. One of plaintiff's witnesses testified that on the night in question the moon was not shining; there was no wind; it was not cloudy; it was an ordinary summer night. Another witness testified that the stakes of the body of the truck in question were painted yellow, and the remainder of the body of the truck and the cab were painted red. Plaintiff was the only witness who testified concerning the cause of the collision. Evidence was received touching other phases of the case, but such other evidence does not give any light upon the question presented on this appeal.

It is upon the legal effect of substantially the foregoing evidence that the parties divide. Appellant contends that the question of the contributory negligence of plaintiff should have been submitted to the jury for its determination. Respondents urge that the evidence, viewed in the light of our statutory law as construed by this court, shows that plaintiff was, as a matter of law, guilty of contributory negligence which negligence on his part caused or contributed to the injury for which he seeks to recover in this action. No claim is made by respondents that the evidence is insufficient to support a finding that they were guilty of negligence at the time in question. Laws of Utah 1921, chap. 83, § 3976, p. 232, which was in effect at the time in question contains, among others, these provisions:

"Every motor vehicle * * * shall have mounted on the right and left sides of the front thereof a pair of lamps of approximately equal candle power. * * * If said vehicle can exceed a speed of fifteen miles per hour, then they shall have front lamps capable of furnishing light of sufficient candle power to render any substantial object clearly discernible on a level highway at least two hundred feet directly ahead and at the same time at least seven feet to the right of the axis of such vehicle for a distance of at least one hundred feet. * * *

"Every vehicle which shall use the highways of this state and at all times during the period from a half hour after sunset to a half hour before sunrise shall be equipped with a lamp or lamps, as herein provided, of sufficient power and so adjusted and operated as to enable the operator of such vehicle to proceed with safety to himself and to other users of the highways under all ordinary conditions of highway and weather."

In this jurisdiction the doctrine is established "that it is negligence as matter of law for a person to drive an automobile upon a traveled public highway, used by vehicles and pedestrians, at such a rate of speed that said automobile cannot be stopped within the distance at which the operator of said car is able to see objects upon the highway in front of him." In the case of Nikoleropoulos v. Ramsey, 61 Utah 465, 214 P. 304, the language just quoted is said to be a correct statement of the law and that the refusal of the trial court to so instruct the jury was prejudicial error. In the case of O'Brien v. Alston, 61 Utah 368, 213 P. 791, 792, it is said:

"But entirely apart from any statutory requirements, the law requires that, if a person desires to operate his automobile on the public streets or highways after dark, he must see to it that it is equipped with proper, suitable, and sufficient lights, so that the operator may discover any objects or obstructions that may be encountered on the highway. The law in that regard is clearly and tersely stated in Serfas v. Lehigh, etc., Ry. Co., 270 Pa. 306, 113 A. 370, 14 A. L. R. 791, where the court, in speaking of the duty of the operator of an automobile to have the same equipped with proper lights, said:

"'* * * It is the duty of a chauffeur traveling by night to have such a headlight as will enable him to see in advance the face of the highway and to discover grade crossings, or other obstacles in his path, in time for his own safety, and to keep such control of his car as will enable him to stop and avoid obstructions that fall within his vision.'

"In the case of Lauson v. Fond du Lac, 141 Wis. 57, 123 N.W. 629, 135 Am. St. Rep. 30, 25 L. R. A. (N. S.) 40, the law is stated in the headnote as follows:

"'Independent of any statute, it is negligence to run an automobile on a highway at night without sufficient lights to enable the driver to see objects ahead of him in time to avoid them.'"

In addition to the cases and...