Ferguson v. Jongsma

• Decision Date: 22 March 1960
• Docket Number: No. 8897,8897
• Parties: d 179 D. Paul FERGUSON, Plaintiff and Appellant, v. Jeffrey Paul JONGSMA, J. Jacob Jongsma, Vaughn William Kay and Albert Kay, Defendants and Respondents.
• Court: Utah Supreme Court

Page 404

350 P.2d 404

10 Utah 2d 179

D. Paul FERGUSON, Plaintiff and Appellant, v. Jeffrey Paul JONGSMA, J. Jacob Jongsma, Vaughn William Kay and Albert Kay, Defendants and Respondents.

No. 8897.

Supreme Court of Utah.

March 22, 1960.

Van Cott, Bagley, Cornwall & McCarthy, Grant Macfarlane, Jr., Salt Lake City, for appellant.

Rich & Strong, Salt Lake City, for respondent.

WADE, Justice.

From a judgment on a jury verdict finding no cause of action for injuries received in attempting to arrest two of the defendants whom he caught siphoning gasoline from a parked truck, plaintiff appeals.

The following facts are not disputed: plaintiff lives at 2531 East on 4800 South Street near Holladay in Salt Lake County. Gasoline had been siphoned from a number of cars and trucks while parked on the street at night in that neighborhood. Plaintiff, who had been a deputy sheriff and had arranged to return to that position shortly, had received complaints from neighbors whose gas had been stolen. About 11:30 p. m. on the night of August 30, 1956, plaintiff was informed that gas was being siphoned from a truck parked on the street opposite his home. He took a large flashlight and an unloaded revolver and went into the street to investigate. Stopping in the middle of the street, he saw a truck parked on the south side of the street slightly to his east facing east with the legs of a man protruding from under it. This man was siphoning gas from the gas tank. He also saw a car parked on the north side of the street facing west with the lights out and the motor running with a person sitting behind the wheel. The defendant Jeffrey Jongsma was the person behind the wheel of the car. The car was owned by defendant Albert Kay, who had entrusted it to defendant Vaughn Kay, his son, whose legs were protruding from under the truck. Plaintiff shouted: 'Both of you come out where I am.' After a few seconds the car started to move and plaintiff turned the flashlight on the gun so the driver could see it and shouted: 'Stop or I will shoot.'

There is a conflict in the evidence of what else happened. According to the plaintiff, the car traveled slowly at first, but after moving from three to ten feet, and after he had shouted 'Stop, or I'll shoot,' the speed was accelerated and it was turned very sharply so that it came directly toward him and he had to step aside to avoid being hit. As he did so the driver's door was thrown open and to avoid being hit by the door he raised his arms so they went through the glass-lowered window of the open door and the door went shut with plaintiff hanging across it. There was no running board so his feet and legs were hanging outside the door and his arms and hands were inside; he was still holding the gun in one hand and the flashlight in the other. Plaintiff claims he continually begged Jongsma to stop the car, and Jongsma told him 'to go to _____,' that the car continued to accelerate while Jongsma leaned to the other side with his head in a blinded position behind the dashboard. The car was veering to the south side of the road and plaintiff was afraid to drop off until he had passed a car parked on that side of the street. By that time the car was traveling too fast to drop off in safety. The car continued to accelerate and veer to the south into a power pole, which was sheered off, and plaintiff and the car came to rest separately on a lawn south of the road. Jongsma got out of the car and ran and plaintiff at first ran after him. Plaintiff produced proof of injuries and hospital treatment from this accident.

According to plaintiff's estimates of positions and measurements of distances, the car traveled diagonally from where it was parked to where the door contacted plaintiff about 20 feet. From there to a utility pole east of the car, which was parked on the south side of the road, was 37 feet, and to the power pole which was sheered off 157 feet, or a total of 214 feet from where the car was parked to where it contacted the power pole. Plaintiff estimated that the car started slowly, then after traveling from three to ten feet was greatly accelerated and was traveling about 25 miles an hour upon passing the car which was parked on the south side of the street and about 40 miles per hour when it hit the power pole.

Jongsma's testimony was different. He contradicted statements which he admitted having previously made. He was first called by plaintiff and testified as an adverse witness and when called by his own attorney he contradicted some of the previous testimony stating that he didn't think straight until after talking with his attorney, which was after giving his previous testimony. He admitted that he gave to the officers 30 miles per hour at midway and 40 miles per hour as his speed when he struck the power pole, but he indicated in his testimony that the car traveled much slower than the speeds given. He repeatedly testified that he had no idea how fast he was going. He testified that he did not turn the car toward the plaintiff but merely edged slightly southward to get all wheels on the pavement then traveled directly westward about three or four feet north of where plaintiff stood, and that plaintiff stepped over to the car and jumped onto the door. He first said the door was loose and that it came open when plaintiff grabbed it and that plaintiff jumped onto the open door, putting both arms around the door post while hanging across the open door. Later he denied this, claiming he had been confused, and testified that plaintiff leaned over the door through the open window with the flashlight in one hand, the gun in the other, near his head behind the wheel and ordered him to 'Stop the car or I'll shoot.' He further admitted that he made no effort to stop the car, that he was driving at night without lights and could not see the road, attributing this in part to plaintiff's bright flashlight shining in his eyes, but he denied that he ducked his head behind the dashboard. On cross-examination he reluctantly admitted that the car was accelerated by his foot on the gas, claiming that it was not intentional, but he admitted that he did not try to stop and that his object in driving the car was to get away. He estimated that the car went 25 or 30 feet before it came by the place where plaintiff was standing.

Plaintiff contends that the court prejudicially erred by refusing to charge the jury that contributory negligence is no defense to wilful, wanton, or reckless misconduct and instructing the jury that if they found plaintiff guilty of contributory negligence he could not recover.

Plaintiff complains that the court refused to submit to the jury this issue of fact, which under his theory, if found in his favor, would entitle him to recover. In determining this question we must view the evidence of facts and the inferences to be drawn therefrom in the light most favorable to plaintiff. If the plaintiff produced prima facie proof from which the jury could reasonably find facts, which, under plaintiff's theory of the case, would entitle him to recover, the court committed prejudicial error. ¹

Although plaintiff's own negligence, which proximately contributed to his injuries, bars his recovery from a defendant whose mere ordinary negligence would otherwise have made him liable for plaintiff's injuries, ² his mere ordinary contributory negligence does not bar a recovery by plaintiff for injuries proximately caused by defendant's wilful, wanton or reckless disregard ³ for plaintiff's safety. ⁴ Only where plaintiff, knowing of defendant's reckless disregard for his safety and the danger to plaintiff thereby created, recklessly exposes himself to such dangers and thereby proximately contributes to cause his injuries does plaintiff's contributory negligence bar his recovery. ⁵ Thus while ordinary contributory negligence bars plaintiff's recovery for damages to him, which was proximately caused by defendant's ordinary negligence, where, however, plaintiff's injuries were proximately caused not by ordinary negligence but by reckless disregard for plaintiff's safety, mere ordinary negligence of the plaintiff does not bar his recovery.

So the court refused to give plaintiff's proposed instruction No. 12 involving plaintiff's theory of the issues of fact and the law on this question. That proposed instruction reads as follows:

'You are instructed that it is no defense so far as the injuries to Mr. Ferguson are concerned that he was guilty of negligence contributing to his injuries, if the conduct of the defendant Jeffrey Jongsma in the operation of the Ford automobile amounted to wilfulness, wantonness or recklessness.

'In this regard if you find from a preponderance of the evidence that the defendant Jeffrey Jongsma intentionally turned the automobile he was operating in the direction of the plaintiff and drove said automobile directly at the plaintiff or that the defendant Jongsma intentionally opened the door of the car he was operating in an attempt to strike the plaintiff with said door and if you further find from a preponderance of the evidence that such conduct on the part of the said Jongsma was a proximate cause of the injuries of plaintiff, then you are instructed that the plaintiff is entitled to recover regardless of any negligence on his part.'

This was prejudicial error. Without any doubt the jury could have found the facts in plaintiff's favor. The jury could have reasonably concluded that Jongsma started the car slowly then suddenly accelerated the speed and turned the car directly toward plaintiff while he was standing in the middle of the road with his flashlight showing so that Jongsma must have seen him. Such actions would undoubtedly place plaintiff in grave danger and would justify, if not compel, a finding that Jongsma acted in reckless disregard for plaintiff's safety. The evidence would amply justify a finding that when plaintiff stepped out of the path of...