Devine v. Cook

• Decision Date: 07 February 1955
• Docket Number: No. 8145,8145
• Parties: d 134 James S. DEVINE, Mrs. James S. Devine and Janet Gusinda, Plaintiffs and Appellants, v. Helen COOK and W. S. Hatch Co., Inc., Defendants and Respondents.
• Court: Utah Supreme Court

Page 1073

279 P.2d 1073

3 Utah 2d 134

James S. DEVINE, Mrs. James S. Devine and Janet Gusinda, Plaintiffs and Appellants, v. Helen COOK and W. S. Hatch Co., Inc., Defendants and Respondents.

No. 8145.

Supreme Court of Utah.

Feb. 7, 1955.

Dan S. Bushnell, Richards & Bird, Salt Lake City, for appellants.

Stewart, Cannon & Hanson, Don J. Hanson, Ray, Quinney & Nebeker, Thornley K. Swan, Salt Lake City, for respondents.

NORSETH, District Judge.

The three actions involved in this case arose out of a single automobile collision which occurred in Davis County, Utah, September 7, 1951, at approximately 4:30 o'clock p. m. The plaintiffs--James S. Devine, his wife Mrs. James S. Devine, and her sister Janet Gusinda--sought to recover damages from Helen Cook and W. S. Hatch Company, Inc., defendants, for personal injuries sustained by each of the plaintiffs, and for property damage sustained to the automobile owned and driven by the plaintiff James S. Devine.

The case was tried to a jury in Davis County, Utah, which returned a verdict of no cause of action against the three plaintiffs and in favor of both defendants.

The facts of the case are briefly as follows:

On September 7, 1951, James S. Devine, his wife Mrs. James S. Devine, and her sister Janet Gusinda, the plaintiffs, were all in the automobile operated by the plaintiff James S. Devine, who was proceeding north towards Ogden, Utah, on U. S. Highway 91. The collision occurred at the intersection of 1500 South Street, in Bountiful, Utah, and U. S. Highway 91. 1500 South Street runs east and west and crosses U. S. Highway 91. U. S. Highway 91 is a four-lane street running north and south, intersected by 1500 South Street, a two-lane highway running east and west.

At the same time the Devine car was proceeding north, a tank truck and a four-wheel trailer and a tractor transporting a two-wheel semi-trailer, owned and operated by W. S. Hatch Company, Inc., were also proceeding north on the inside lane; that is, the lane nearest to the center dividing line of U. S. Highway 91. On 1500 South Street there is a stopsign both at the east and west, where the 1500 block intersects Highway 91. As the first truck of the Hatch Company approached 1500 South Street, the driver slowed down and gave a signal indicating he intended to make a left-hand turn into 1500 South Street. The second truck also slowed down, and both vehicles came to a complete stop at the intersection of 1500 South Street with U. S. Highway 91. As these vehicles approached 1500 South Street, and before stopping to make the left-hand turn, the first truck passed the Devine car, which was travelling north in the right-hand lane of Highway 91. At the time the first truck slowed down and stopped, Helen Cook, a defendant, was on 1500 South Street going east. Mrs. Cook stopped for the stopsign located on the south side of 1500 South Street. The trucks could not complete a left-hand turn into 1500 South Street until the Cook car had cleared the street. The driver of the first truck, after he had stopped, in some manner which is not entirely clear from the evidence, signalled or motioned the Cook car to proceed. Thereupon Mrs. Cook did proceed east across Highway 91. The Devine car continued to proceed north, and, according to the testimony of Mr. Devine, he did not see the Cook car in time to avoid a collision. He further testified that when he saw the Cook car he slowed down and turned his car to the right and attempted to avoid the collision. There is no evidence that excessive speed was involved in this case. Devine testified he was travelling about 35 miles per hour. The speed limit in this immediate area is 40 miles per hour. The driver of the first truck testified he did not remember motioning or signalling to Mrs. Cook. However, Mrs. Flora Hutchings, a witness called by the defendant Cook, testified that the driver of the truck had motioned or signalled to Mrs. Cook to proceed.

This appeal is presented on three points by the plaintiffs, as follows:

The instructions prejudicially accentuated the duty of the plaintiffs and minimized the duty of the defendants.

It was error to instruct the jury on an issue of contributory negligence of the plaintiffs, Miss Gusinda and Mrs. Devine.

The Court's instructions regarding contributory negligence were erroneous and prejudicial.

The defendant and respondent W. S. Hatch Company, Inc. contends that the Court erred in failing to grant its motion for a directed verdict.

The defendant and respondent Helen Cook contends that the plaintiffs failed to make timely or proper ojbections to the Court's instructions, and therefore plaintiffs should not be permitted to object to the instructions in the manner charged in the appeal.

We, after a careful review of the entire record in this case, conclude that the plaintiffs' contentions are well taken, and that the Trial Court in its instructions did commit prejudicial error, (1) By the overaccentuation placed on the duties of the plaintiffs and by a lack of accentuation placed on the duties of the defendants. (2) That the Trial Court also committed prejudicial error in instructing the jury on the issue of contributory negligence of the two plaintiffs, guests in the automobile--Mrs. James S. Devine and Janet Gusinda. It is apparent in this case that the pleadings and evidence did not warrant or support the instructions on contributory negligence of these two plaintiffs--Mrs. Devine and Miss Gusinda. (3) That the Trial Court's instructions regarding contributory negligence was error and prejudicial. (4) That the Trial Court committed error in refusing to grant the motion of the defendant W. S. Hatch Company, Inc. for a directed verdict. (5) We also conclude that the contentions of the defendant Helen Cook that the plaintiffs failed to make timely or proper objections is not well taken, inasmuch as the record shows that certain exceptions to the instructions were taken, and certain objections were made by the plaintiffs relating to points raised by the plaintiffs in their appeal to this Court.

In discussing the various points enumerated above, a summary of the points will be made in the order set out.

(1) Overaccentuation. No particular objection can be raised to the instructions 1 to 4 inclusive. However, when these instructions are considered in conjunction with instructions 5, 7, 8 and 9, it can be readily seen that the instructions accentuated the duty of the plaintiffs and minimized the duty of the defendants. Let us consider briefly Instruction No. 4, a part of which is as follows:

'You are instructed that if you find by a preponderance of the evidence that Dr. James S. Devine was guilty of contributory negligence, which in any degree contributed to the happening of this accident, he cannot recover even though you find that one or both of said defendants was negligent in the happening of this collision. It is the law of this state that a plaintiff who is negligent and such negligence proximately contributes to the happening of the accident in question that he cannot recover. Therefore, you are instructed that if you find Dr. Devine was negligent, as I have above indicated, and the same proximately contributed to the happening of the collision he cannot recover.'

The Court in that same instruction advised the jury as follows:

'In this connection you are further instructed that if you find either one of the woman plaintiffs guilty of contributory negligence which in any degree proximately contributed to the happening of the collision then and in that event such plaintiff so guilty cannot recover.'

The Court instructed the jury that if the plaintiff Devine's negligence was the proximate cause of the collision, then the plaintiffs Mrs. Devine and Janet Gusinda could not recover against the defendants.

In Instruction No. 6 the Court again reverts to the issues of contributory negligence on the part of the plaintiffs Mrs. Devine and Janet Gusinda. The Court in this instruction identifies the two plaintiffs, the guests, and states it is the positive duty of the guests to see and warn the driver, if under the circumstances a reasonable and prudent person would do so, and later asserts that if they fail to see and advise the driver said conduct on their part constitutes negligence and bars recovery. This fails to take into account that in some circumstances to make an outcry might be an ill-advised thing to do, and that such warning by the guest would only be required if consistent with reasonable care; and also fails to include the necessary element of proximate cause.

We now consider Instructions No. 7 and 9, wherein the Court charged the jury pertaining to the duty of the defendants Cook and W. S. Hatch Company, Inc. In Instruction No. 7 the Court states:

'You are instructed that a driver of a vehicle upon a highway has no duty to ascertain or advise other drivers whether they may safely enter upon or pass over said highway; but if the driver undertakes to make such a determination and does so advise others, then he must exercise reasonable caution, circumspection and care that his conclusions are correct.'

The Court also in Instruction No. 7, in a negative manner, discussed whether the defendant W. S. Hatch Company, Inc., through its agent the driver, did undertake to determine whether the defendant Cook could safely enter and pass through the intersection, and instructed there was no duty except under certain conditions. In Instruction No. 8, pertaining to the duties of the plaintiff Devine, the Court instructed in part as follows:

'You are instructed that it was the duty of James S. Devine in driving down the highway toward the intersection in which this collision occurred to keep a reasonable and adequate lookout, * * * to use reasonable care * * * to avoid the hazards. * * * It was the plaintiff James S. Devine's duty to observe the relative position of other vehicles on the highway, the existence of...