Gibbs v. Blue Cab, Inc.

• Decision Date: 23 October 1952
• Docket Number: No. 7710,7710
• Citation: 122 Utah 312,249 P.2d 213
• Parties: GIBBS et al. v. BLUE CAB, Inc.
• Court: Utah Supreme Court

Page 213

249 P.2d 213

122 Utah 312

GIBBS et al. v. BLUE CAB, Inc.

No. 7710.

Supreme Court of Utah.

Oct. 23, 1952.

Heber Grant Ivins, American Fork, Robert B. Porter, Jr., and D. M. Draper, Jr., Salt Lake City, for appellants.

Skeen, Thurman & Worsley, John H. Snow, Salt Lake City, for respondent.

HENRIOD, Justice.

This is an appeal from a judgment entered on a directed no cause of action verdict in a suit for wrongful death arising out of an intersection collision involving a bicycle and a cab. The judgment is reversed for a new trial, with costs on appeal to plaintiffs.

Plaintiffs contend that (1) the trial court's conclusion that deceased was contributorily negligent as a matter of law was erroneous, since the presumption that he was using due care for his own safety was not rebutted by defendant, and (2) that under the facts the question of (a) contributory negligence and (b) whether deceased's negligence, if any shown, was a proximate cause of the collision, properly were matters for the jury.

On November 24, 1948, at 6:40 a. m., at the intersection of 23rd St. (running east and west) and Jefferson Avenue (running north and south), residential streets of Ogden, Utah, each 55 feet wide, paved, wet, and while it was dark and raining, respondent's cab, windshield wipers operating, the butterfly window of which was open on the driver's side to prevent fogging, and whose windshield was steamed up, was being driven east on 23rd at 20-25 m. p. h. The driver and only eyewitness, who admitted that his vision was obscured, according to testimony of others, saw the front wheel of a bicycle in the cone of his bright headlights. He did not see the deceased or anything else. He swerved the cab about 40? southeasterly and struck the front of the bicycle a glancing blow about three feet west of the center line of Jefferson. The bicycle at that time was pointed almost at the same angle, so that the two vehicles were almost parallel with each other. The cab was stopped within a reasonably short distance near the southeast corner of the intersection, where the driver alighted and, with the deceased, examined the bicycle, the deceased volunteering that he was all right and that his bicycle was damaged a little. Each then went his way. The deceased, who had resided on Jefferson just north of 23rd, died shortly thereafter on a bus which was carrying him to work. There was no lamp on the bicycle. Thus there was a violation of a city ordinance and a state statute ¹, which established some negligence as a matter of law. ² There was a stop sign on the northwest and a street light on the northeast corner of the intersection.

The court viewed the scene during the trial, on an ordinary day when factors of darkness, wetness, rain, mist, etc. were absent. A person entering the intersection from the north no doubt could see a car in daylight and headlights at night for at least a block west on 23rd.

Without mentioning or attributing the absence of the lamp as a contributing cause, the court concluded that deceased had been contributorily negligent as a matter of law because he negligently failed to look, or, having looked, failed to exercise that degree of care for his own safety attributable to that of the ordinary prudent person.

The only evidence as to what occurred at the time of and immediately prior to the accident was the fact that the cab driver saw the front wheel of a bicycle. What the deceased did prior thereto is relegated inescapably to the realm of conjecture,--even though counsel for defendant, in an excellent brief, urge that certain physical facts, such as existence of the stop sign, situs of deceased's home, a damaged bicycle seat and apparent movement of the bicycle, rebutted the presumption that deceased used due care for his own safety, and established contributory negligence.

We have held that where a verdict is directed, the evidence on appeal will be canvassed in a light most favorable to him against whom it is directed. ³ Among other things, some of the factors which could influence a jury in determining the existence or non-existence of contributory negligence would be darkness, wetness, rain, mist, and the fact that the bicyclist had turned his vehicle to the left easterly on 23rd Street--factual matters ordinarily for the jury. In considering such matters and all the evidence, the jury may have determined that deceased acted as an ordinary prudent person in failing to appraise accurately the proximity of the cab or its speed, so as reasonably to have misjudged his ability to clear the intersection in safety, absolving him from the charge of contributory negligence.

As a matter of law, it cannot be said in this case what happened and consequently it cannot be said as a matter of law that there was or was not contributory negligence. Nor can it be divined or concluded with certainty that deceased failed to do that which may have negatived contributory negligence. We believe the facts shown in the record, such as they are, and irrespective of presumption, properly were for the jury, presenting a case where all reasonable minds necessarily need not determine an ultimate fact inconsistent with that of exercising a discretion characteristic of the reasonable prudent man.

Assuming that in one aspect, by showing a violation of the city ordinance, defendant established some negligence on the part of deceased as a matter of law, the problem remains as to whether absence of the lamp under all the facts was or was not a contributing proximate cause of the collision,--particularly in view of the fact that immediately prior to the time of impact the bicycle, and therefore, the lamp, was pointed away from the vision of the defendant--a proper jury question.

We are committed to the principle that matters of negligence, contributory negligence and proximate cause generally are jury questions, ⁴ unless the evidentiary facts are of such conclusive character as to require all reasonable minds to conclude that the ultimate fact of negligence, contributory negligence or proximate cause does or does not exist. ⁵ Recognizing the rule that the trial court's conclusions will remain undisturbed unless clearly arbitrary, we believe that application to this case of the principles mentioned, being the only practical yardstick applicable in intersection cases, compels us to disagree with the trial court's conclusion.

As in other cases, the reasonable man doctrine, and the rules pertaining to the function of court and jury with respect to determination of negligence, contributory negligence or proximate cause, must be invoked in intersection cases--a type that creates more difficulty of decision than most. Difficulty arises in applying the simple, constant rules to shifting factual scenes. The most difficult cases are those where similarity of fact encourages citation of one group of precedents, but where slight difference in fact may invite equally vigorous citation of antithetical authority. It cannot be gainsaid that such slight differences not only have led to apparent conflicts in the decisions, but have led to actual conflicts, wholly irreconcilable by employment of any amount or manner of logic. The confusion resulting from applying the rules to varying factual situations is apparent in reviewing the countless split decisions, frequently punctuated by earnest and emphatic disagreement as to whether a given set of facts should or should not have been given to the jury, or determined as a matter of law. This, our own 3-2 decision, tends significantly to illustrate the point. The authorities generally, including the decisions of our own court, have contributed to the conclusion, and characteristic differences in point of view attending the human equation, provokes a ventured guess that the disharmony will persist,--unless we analyze each case on its own facts and categorize it as being or not being one involving a jury question under the reasonable man doctrine, quite irrespective of any attempt to reconcile the same by apology for, explanation of, or nice distinction between facts of decisions heretofore rendered, no two of which possibly could present analogous facts. True, in applying the rules the fallibility of humanity sometimes might provoke error and injustice, but an honest application thereof without factually distinguishing or comparing with precedents is the best we can do under our legal system where minds differ, and where fortunately, perhaps, none of us is endowed with qualities of omniscience.

It is suggested that there are cases that could be resolved on the grounds that there is such a thing as a pure and simple accident,--where neither party is negligent, although such cases be rare; but we have been prone to assume that someone must have been negligent in an intersection collision. In the instant case, it does not seem too unreasonable to the writer to believe that the jury well might have concluded, if it had been permitted to determine the facts, that neither the bicyclist nor the cabman acted other than ordinary, prudent persons would have done under like circumstances and conditions. In such event the collision would have been an accident involving the principle of damnum absque injuria. We think it not the inevitable conclusion that anyone killed or injured in an intersection, or the other principal in the event, of necessity must have been guilty of some carelessness contributing to the mishap. Nothing in the cases cited by defendant ⁶ requires such a conclusion. No case has laid down so broad a rule, yet the confusion of the already decided ones might make it appear that such is the rule. Each case must rest on its own facts, and we are constrained to hold that the facts in this case justify presentation to the jury of the questions of defendant's negligence, deceased's contributory negligence and whether both, either or neither was a proximate cause of any injury.

CROCKETT, J.,...