Goode v. Dayton Disposal, Inc., 19689
Decision Date | 05 June 1987 |
Docket Number | No. 19689,19689 |
Parties | Bettye S. GOODE, Plaintiff and Appellant, v. DAYTON DISPOSAL, INC., Defendant and Respondent. |
Court | Utah Supreme Court |
David S. Kunz, Ogden, for plaintiff and appellant.
Lynn S. Davies, Salt Lake City, for defendant and respondent.
Plaintiff sought damages for personal injuries sustained when the automobile she was driving collided with a garbage truck owned by defendant. Plaintiff appeals from a jury verdict which absolved defendant of any negligence and also appeals the denial of her motion for a new trial.
We view the conflicts in the evidence adduced at trial in the light most favorable to the jury verdict. 1 The accident occurred in the parking lot of an apartment complex in Roy, Utah, at about 8:30 a.m. Plaintiff was entering the lot as one of defendant's front-end loading garbage trucks was backing out. The driver found it necessary to back out because of the congestion of parked vehicles.
At the time of the accident, plaintiff's vehicle was moving forward in a position directly behind the truck, out of view of its driver who was backing up with the use of side mirrors. The maximum reverse speed of the truck was two miles per hour. Warning lights and a buzzer were operating on the truck, and two large warning placards on the back of the truck were plainly visible. Plaintiff did not honk her horn or take any evasive action. As a result of the collision, plaintiff sustained back injuries requiring surgery for the excision of a herniated intervertebral disc.
Plaintiff's first point on appeal is that the trial court erred by denying her challenge for cause to one of the panel members, Mrs. Winterton. During the voir dire examination, Mrs. Winterton disclosed that she and her husband were also engaged in the garbage collection business, and the following colloquy ensued:
....
MRS. WINTERTON: I--like I stated before, I--we own a route, and maybe I wouldn't be able to judge it properly.
In response to opposing counsel's question if there was a challenge for cause against Mrs. Winterton, counsel for plaintiff stated: Thereupon, a further colloquy ensued:
The record is thus clear that no challenge for cause was lodged against Mrs. Winterton and that no such issue was tried by the trial court. 2 Instead, in the exercise of its discretion, the trial court conducted further voir dire to determine the qualifications of Mrs. Winterton to sit as a juror. 3 In so doing, the trial court did not abuse its discretion by concluding that Mrs. Winterton's pursuit of a business similar to that of defendant did not disqualify her as a juror. 4
Plaintiff next contends that by rejecting several of her requested instructions, the court failed to submit her theory of the case to the jury. Said instructions recite (1) that one sees what is looked at and hears what is audible; (2) that the operator of a backing vehicle cannot assume the path is clear; (3) that one who backs into another vehicle without seeing it is negligent; (4) that one who backs into another vehicle without looking is negligent; and (5) the law of respondeat superior.
A party is entitled to have his theory of the case submitted to the jury, and where there is evidence to support a party's theory of the case, it is error for the court to refuse to instruct thereon. 5 However, the jury will be deemed to have been properly instructed when the jury instructions, taken as a whole, adequately set forth the law applicable to the issues to be determined by the jury. 6 The fact that a requested instruction accurately states the relevant law does not require that the instruction be given, provided its substance was included elsewhere in the instructions. 7
In this case, the court properly instructed the jury as to plaintiff's theory...
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