Farrell v. Cameron

• Decision Date: 24 October 1939
• Docket Number: 6099
• Citation: 94 P.2d 1068,98 Utah 68
• Court: Utah Supreme Court
• Parties: FARRELL v. CAMERON

94 P.2d 1068

98 Utah 68

FARRELL v. CAMERON

No. 6099

Supreme Court of Utah

October 24, 1939

Rehearing denied December 28, 1939.

Appeal from District Court, Third District, Salt Lake County; R. I McDonough, Judge.

Action by Julia Farrell against Dan Cameron for injuries sustained in an automobile collision. Judgment for plaintiff, and defendant appeals.

Affirmed.

Ralph B. Ottenheimer and Harley W. Gustin, both of Salt Lake City for appellant.

J. J. Whitaker, of Salt Lake City, for respondent.

WADE, District Judge. MOFFAT, C. J., PRATT, Justice, concurring. WOLFE, Justice, LARSON, J., dissenting. McDONOUGH, J., being disqualified, did not participate.

OPINION

WADE, District Judge.

This is an action by the plaintiff, the respondent here, against the defendant, the appellant here, to recover damages which she claims to have suffered as the result of a collision between the automobile in which she was riding and one owned and driven by the defendant. The action was tried by the court, without a jury, and the following are the material facts found by the court:

"2. That on the 24th day of April, 1937, at the hour of 8 P. M. * * * the plaintiff was a passenger in [an] automobile owned by one Pete Cayias and being * * * driven by him on Highway No. 50 in Magna * * *. That said Cayias was driving said car * * * west on said highway * * * in a careless and negligent manner, in this: That he was driving said automobile with the left wheels thereof from 12 to 16 inches to the left of the center line of said highway. That the defendant at said time and place was driving an automobile east on said highway, in a careless and negligent manner and without due care for the safety of plaintiff and others, in this: That at said place on said highway where he was approaching the car of Pete Cayias he [the defendant] was blinded by the lights of an on-coming automobile and that, although he observed the Cayias car at a distance of about 100 feet from the same, he nevertheless * * * proceeded along said highway at a rate of speed of approximately 30 miles per hour and failed to slow down or make any effort to avoid colliding with said Cayias car; that by turning slightly to the right he could have * * * avoided said collision, there being ample time and space to do so.

"3. That as a result of the negligent conduct of Pete Cayias, as aforesaid, and the negligent conduct of the defendant * * * the said automobiles were caused to collide, causing plaintiff to be violently thrown against the side of the car * * * thereby * * * causing her great pain and suffering to her damage in the sum of $ 200.

"4. That * * * the plaintiff was riding as a passenger in said Pete Cayias' automobile, and the injuries which she received therein were not due and were not occasioned by her own carelessness or negligence, but the proximate cause of the injuries which she received was the concurring negligence of the defendant and Pete Cayias."

The findings are not questioned, and unless the judgment, as a matter of law, is not supported by the facts found, then it must stand, and in determining this question we must decide whether under the facts found the defendant was guilty of negligence and, if so, was his negligence the proximate cause of the accident and plaintiff's injuries.

The court failed to find on which side of the road the defendant's car was at the time of the collision. We cannot assume facts against the defendant, and so we will assume that all of his car was on the right side of the center line of the road. The Cayias car being on the left side of the road only from 12 to 16 inches, it must have been some part of the left 16 inches of the two cars which collided in this accident.

The findings do not directly state the speed of the Cayias car at the time of the accident, but the court did find that the defendant had ample time after seeing the Cayias car 100 feet away to turn his car slightly to the right and avoid the collision.

Defendant's counsel argues that this finding is contrary to the facts found. He assumes that the Cayias car was traveling 30 miles per hour, same as the defendant. It would take only 1.136 seconds for the two cars to travel 100 feet, which he contends is not ample time for the defendant to avoid the collision. If it takes .75 second for a normal person to act after observing danger, the defendant would travel 33 feet in that time, and would have 17 feet to go before he would meet the Cayias car. If defendant's car was on the center line when he observed the Cayias car, he would have to move to the right 16 inches to avoid a collision, while he traveled 17 feet forward--which would be ample. But, if that were not ample, the court did not find that the Cayias car was traveling 30 miles per hour. Plaintiff, however, pleaded that the Cayias car was going only five miles per hour, and if there is any reasonable speed which is consistent with that finding, then this court cannot say that it is erroneous. If the Cayias car was traveling only ten miles per hour, the two cars would travel 40 miles per hour, or 59 feet per second. It would take 1.68 seconds for the two cars to meet, which clearly would give the defendant ample time to turn and avoid the collision.

The findings are also uncertain as to whether the "lights of an on-coming automobile" which blinded the defendant were the lights of the Cayias car or the lights of another automobile. Nor do they state how far the cars were apart when the defendant was so blinded; nor for how long a time he continued to be blinded; nor to what extent he was blinded by said lights. Defendant's counsel states that defendant "was blinded by the lights of the Cayias car"; but the language used by the court seems to indicate that it was the lights of another car. Thus the court, immediately before and immediately after the part above quoted, referred to the Cayias car as "the Cayias car;" but here the court says "an on-coming automobile"; not "the on-coming automobile" and not "the Cayias car." If it was the lights of another automobile, and not the lights of the Cayias car, which blinded the defendant, then the other car must have been ahead of the Cayias car and between it and the defendant's car, and no doubt passed the defendant's car when it was 100 feet from the Cayias car, and therefore those lights would not bother the defendant any more. That is the natural construction to be placed on the language of the court. But, on the other hand, if the lights which blinded the defendant were the lights of the Cayias car itself, then their effect would no doubt continue to some extent from the time the defendant first saw that car until the time of the collision.

When we speak of being blinded by the lights of an oncoming coming automobile, what do we mean? How blind is a person who is so blinded? Can he see the road on which he is traveling--or the edge of the pavement, or the shoulder beyond, or the line painted in the center of the road? Can he, if he uses due care, see the position of an on-coming automobile sufficiently to avoid colliding with it? Or is he so blinded that he cannot determine any of these details?

Probably different people are affected differently by automobile lights. A glaring light in the nighttime is very annoying to everyone, and if a driver continues to look directly into the lights he, of course, sees nothing else. On the other hand, if he looks toward the road and at the objects which it is his duty to see, ordinarily he can see. Thus, if the defendant had used due car, the care that an ordinary driver does use, he could have seen the road and the edge of the pavement and the shoulder and the position of the Cayias car and could have avoided the collision.

The trial court found that both Cayias and the defendant were negligent in driving their cars at the time of this accident, and that the negligence of each of them was the proximate cause of the injuries to the plaintiff. It can make no difference in this case which of the two was more negligent. If the defendant was negligent and that negligence was the proximate cause of the injuries, the plaintiff can recover from the defendant, unless she is guilty of negligence herself. The trial court has expressly found that she was not negligent, and that finding is not questioned.

The trial court found that the defendant was negligent-- first, in failing to slow down after he had seen the Cayias car, and, second, in failing to turn his car slightly to the right and thereby avoiding a collision.

Was the defendant negligent in failing to slow his car down after seeing the Cayias car? If so, was that negligence the proximate cause of plaintiff's injuries? The defendant was driving approximately 30 miles per hour, which is within the speed limit, and if his rate of speed was negligence it was because of the special circumstances which existed at the time and place of the accident, which caused it to be dangerous for him to drive at that time and place at that rate of speed and not slow his car down after he had seen the Cayias car.

There are two facts which might have existed which would make it the duty of the defendant to slow his car down or stop.

First If the Cayias car were turning to its right at the time the defendant first saw it, then the defendant, by slowing his car down, would give it the time to move over onto its side of the road and out of the course of the defendant's car, and would thereby have avoided the collision. Clearly, if those were the facts it would have been the duty of the defendant to have slowed his car down to avoid striking the Cayias car, even though the Cayias car was unlawfully on the wrong side of the road. There is however, no finding that the Cayias...