Esernia v. Overland Moving Co.

• Decision Date: 31 May 1949
• Docket Number: 7195
• Court: Utah Supreme Court
• Parties: ESERNIA v. OVERLAND MOVING CO. et al

206 P.2d 621

115 Utah 519

ESERNIA v. OVERLAND MOVING CO. et al

No. 7195

Supreme Court of Utah

May 31, 1949

Appeal from District Court, Third District, Salt Lake County Joseph G. Jeppson, Judge.

Judgment affirmed.

Skeen Thurman & Worsley, Salt Lake City, for appellant.

Ingebretsen Ray, Rawlins, & Christensen and Joseph S. Jones, Salt Lake City, for respondent.

Pratt, Chief Justice. Wolfe, Latimer, and McDonough, JJ., concur. Wade, Justice (dissenting).

OPINION

Pratt, Chief Justice.

Steven M. Esernia, the appellant herein, commenced this action to recover from the Overland Moving Co., and Thomas C. Jones, respondents herein, for injuries sustained in an accident which occurred while he was riding in a truck which was owned by the Overland Moving Company, and was being driven by Thomas C. Jones, an employee of that company. This appeal is from a directed verdict in favor of the respondents.

Appellant testified that about 10 o'clock on the evening of June 24, 1943, he and a friend, a fellow Marine, were at a hamburger stand located on the outskirts of Elko, Nevada, when respondent Thomas C. Jones drove a big furniture van belonging to respondent, Overland Moving Co., up to that stand and invited the two marines to accompany him to Salt Lake City, Utah. Either before they entered the vehicle, or as they were entering, or else after they entered but before they left Elko, the driver of the truck informed them that he would like their company because he was tired and weary and sleepy. Esernia also testified that he (the driver) also told them that he had driven straight through from San Francisco without sleep or rest. The marines accepted the offer of the ride to Salt Lake City, and the appellant who was sleepy dozed off shortly thereafter. Sometime thereafter he awakened and then he felt the van bouncing along the shoulder of the road. The driver pulled the van back onto the road and said that he must have dozed off himself. This occurred somewhere between one and four hours after leaving Elko. The driver then requested the boys to talk to him so that he would remain awake. The driver told them that he wouldn't mind if one of them went to sleep, but he did not want both of them to go to sleep at the same time as that would cause him to fall asleep also. The marines then engaged in conversation with the driver during the course of the ride, during which they passed through a couple of small towns butdid not stop at any of these places. The trip was uneventful until about 6 o'clock on the morning of June 25th, when they reached a curve about a mile west of Black Rock Beach in Salt Lake County, on U.S. Highway 40 and 50 where the van veered all the way across the road onto the shoulder and after traveling some distance turned around and tipped over, causing the injuries complained of by appellant herein.

The driver testified that he had made more than one overnight stop since leaving San Francisco, and had stopped over in Elko on the night of the 23rd of June and had remained there the entire day of the 24th so that he would avoid riding during the heat of the day over the desert. Defendants introduced receipts for gas and motel bills corroborating this story. At most this conflict in evidence would only have presented to the jury a question as to whether or not the driver had driven straight through from San Francisco. It did not rebut in any way the uncontroverted testimony that the driver told the marines that he was tired and sleepy. These conversations, testified to by the appellant, were never denied by the driver. The appellant is very positive in his testimony that the driver told him and Meredith that he (the driver) was tired and sleepy. This is a part of his testimony on that subject:

"We were standing there talking to the girls. We were going to stay with the girls that night. This driver pulled up along side of us. He stopped his truck and asked us if we wanted a ride, and we told him we were going to stay in that town. We sort of figured that if we went all the way to Salt Lake we would not be able to get back in time. He told us that he was tired and wanted someone to keep him company on the road so that he would not fall asleep, and he asked us if we would not go with him."

"Q. Did the driver of the truck tell you that he was sleepy more than twice on the trip? A. I don't know how many times he told me, but I know he told me.

"Q. He told you he was tired and sleepy at the time he picked you up; is that correct? A. Yes sir.

"Q. Then he told you he was tired and sleepy about two hours afterward; is that correct? A. I think he told us he was tired and sleepy after that first time he went on the shoulder, that was about, maybe two or three hours afterwards.

"Q. He did tell you he was tired and sleepy before you got on the truck? A. I don't know if we were in the truck or getting in the truck. I know it was in Elko there.

"Q. Before you started on the trip, at any rate? A. Yes sir."

The driver also testified that he had made two stops after picking up the two marines, one at Wendover, and one at Delle, Utah; that at one of these stops he awakened appellant's companion to ask him if he wanted a cup of coffee, but the latter refused. He did not awaken appellant who was also asleep. This conflict in testimony would raise only a question for the jury to determine whether or not the marines had stayed awake during the passage of the truck through those towns and does not raise any controversy as to whether or not the driver was sleepy.

The driver of the van, in a statement made to the police shortly after the accident, said he did not know what had happened but that he "must have dozed or something." He testified that he remembered having waved at the driver of a car just before he came to the curve which he failed to negotiate but that he could not recall what happened after that until the van had left the road and hit the gravel. He then attempted to regain control of the car and steer in between a culvert and some guard rails which were located on the northerly side of the curve, but he failed to gain control of his vehicle and it ran into the guard rails knocking down a couple of its posts as a result of which the front wheels were torn off and the van tipped over.

Appellant contends that the court erred in directing a verdict in favor of respondent herein, because the evidence was sufficient to submit to the jury the questions of willful misconduct under Sec. 57-11-7, U. C. A. 1943, and assumption of risk and contributory negligence.

Respondents argue that it is not material whether the driver was guilty of willful misconduct because the evidence...