Hansen v. Clyde

• Decision Date: 25 April 1936
• Docket Number: 5659
• Citation: 89 Utah 31,56 P.2d 1366
• Court: Utah Supreme Court
• Parties: HANSEN v. CLYDE et al

56 P.2d 1366

89 Utah 31

HANSEN v. CLYDE et al

No. 5659

Supreme Court of Utah

April 25, 1936

Appeal from District Court, Third District, Salt Lake County; Oscar W. McConkie, Judge.

Action by Virgil Hansen against W. W. Clyde and others, copartners doing business under the firm name of W. W. Clyde & Co. A demurrer to the amended complaint was sustained, and plaintiff appeals.

AFFIRMED.

Irvine Skeen & Thurman, of Salt Lake City, for appellant.

A. E Moreton, of Salt Lake City, for respondent.

MOFFAT Justice. ELIAS HANSEN, C. J., and FOLLAND and EPHRAIM HANSON, JJ., concur. WOLFE, Justice, dissenting.

OPINION

MOFFAT, Justice.

This action was instituted by plaintiff to recover damages for personal injuries alleged to have been sustained while riding as a guest passenger in an automobile operated by a party not named in the complaint. The automobile which struck the automobile in which plaintiff was riding was operated by one Fred Bosone. Bosone is not a party to the proceeding. The alleged accident occurred on the highway between Lehi and American Fork in Utah county. The complaint charges that W. W. Clyde, Edward Clyde, Harry S. Clyde, and C. W. Mendenhall were copartners engaged in road construction work under the firm name of W. W. Clyde & Co. Summons was served on Harry S. Clyde.

It is alleged that on August 16, 1933, the state road commission of Utah entered into a written contract with the defendants for the construction of a new road or cut-off between Lehi and American Fork. The points of departure from and reuniting of the new road with the old are described by measurement references. The cut-off consists essentially of two curves forming a sort of letter "S." The point of departure on that part of the highway nearer to Lehi and as approached from the northwest is initiated by a right-hand curve, alleged to be a six-degree curve; that the defendants in pursuance of the contract were engaged in the construction of the new road or cut-off. The following are the allegations of the complaint, the sufficiency of which was attacked by general and special demurrer:

"3. That on November 1, 1933, and prior to the acceptance of said new road or cut-off by said Road Commission, defendants had completed the northwest end thereof for a distance of approximately 150 feet, and that said portion of said northwest end, so completed, had the appearance of a highway open for public travel.

"4. That said contract provided that until said new road or cut-off was accepted by said Road Commission, that the same should be under the charge and care of defendants and that defendants should maintain a warning sign, for the safety of the public, at the beginning and at the end of said new road or cut-off, and that it was defendants' duty to maintain at each end of said new road or cut-off, and especially at the northwest end thereof, a warning sign for the protection of travelers upon said highway.

"5. That on November 1, 1933, defendants carelessly and negligently failed to close the northwest end of said new road or cut-off, or to maintain a warning sign, barricade or other warning device, at said northwest end, where the same intersects with said State highway, and by reason thereof, said northwest end had the appearance of a highway open for travel, as aforesaid; that, also, on said November 1, 1933, defendants carelessly and negligently maintained a barricade across said new road or cut-off approximately 150 feet southeasterly from said northwest end, which said barricade was outside and to the right of the headlight rays of automobiles approaching said intersection upon said highway from the northwest, and, by reason thereof, said barricade could not be seen by the driver of an automobile traveling upon said State highway toward said intersection from the northwest, and, by reason of the curve of said new road or cut-off, as aforesaid, said barricade could not be seen by the driver of an automobile traveling upon said State highway from the northwest and entering upon said new road or cut-off at said northwest end, until such driver was within approximately 50 feet from said barricade, and that such driver traveling at a speed of 35 miles per hour, upon seeing said barricade, could not bring his automobile to a stop within said distance of 50 feet.

"6. That on said November 1, 1933, at about the hour of eight o'clock P. M., plaintiff, as a guest passenger, was traveling in an automobile on said State highway in a northwesterly direction and to the right of the center line thereof, and that when said automobile had reached a point about 25 feet southeast of the intersection of said State highway with the northwest end of said new road or cut-off, said automobile was violently run against by a Chevrolet automobile coming from the northwest, operated by one Fred Bosone, by means whereof plaintiff was severely injured as hereinafter more specifically stated.

"7. That plaintiff is informed and believes, and, on that ground, alleges the fact to be, that at said time the said Fred Bosone was traveling at a speed of approximately 35 miles per hour along said State highway, coming from the northwest, and that as he approached said intersection, he, seeing no warning sign, barricade or other warning device at the northwest end of said new road or cut-off, and believing said new road or cut-off to be open to travel, turned his said Chevrolet automobile to the right and entered upon said new road or cut-off and traveled to the right of the center line thereof, and that when he was first able to see said barricade, maintained by defendants, as aforesaid, at a distance of approximately 50 feet therefrom, he was then too close to the same to stop his said Chevrolet automobile, and that in such emergency, and for his own safety, he turned his said Chevrolet automobile to the left, and, in so doing, said automobile ran into loose gravel, by reason of which the said Fred Bosone lost control of his said automobile and the same passed through said gravel and onto that portion of said State highway on which plaintiff was traveling, and violently collided with the automobile in which plaintiff was riding, thereby causing the injuries to plaintiff of which complaint is herein made.

"8. That the carelessness and negligence of the defendants aforesaid, in failing to close, or to maintain a warning sign at, the northwest end of said new road or cut-off, and in maintaining a barricade so close to said northwest end that a driver entering upon said new road or cut-off from the northwest was unable to see the same in time to stop before colliding therewith, were the sole and proximate cause of plaintiff's said injuries."

The other allegations of the complaint are not drawn into the controversy. They relate to damages.

The general demurrer to the complaint as finally amended was sustained and in due course the case was dismissed. The appeal is on the judgment roll. The only question raised by the appeal and assignment of error is: Does the complaint state facts sufficient to constitute a cause of action against the defendants? We think the complaint insufficient and that the trial court's decision thereon was correct.

Under the allegations made, could Fred Bosone, if he were free from negligence, recover against the defendants? We think he could not. It is alleged that Fred Bosone was traveling at a speed of approximately 35 miles an hour along the state highway, coming from the northwest; that as he approached the point of departure of the new road, "seeing no warning sign, barricade or other warning device," he turned his automobile to the right and entered upon the new road. No reason is assigned why Bosone should leave the established and recognized highway that lay open straight before him. This may not be important. Whatever the reason, none is alleged except such as may be gleaned from the general allegations to justify a traveler in departing from the straight course before him. He probably had a right to do so. Presumably for the purpose of inferring inducement, it is alleged that defendants "failed to close the northwest end of the new road," and that the new road "had the appearance of a highway open for travel"; that the "northwest end * * * for a distance of approximately 150 feet * * * had the appearance of a highway open for public travel." It is not alleged that the new road is a public highway or that it was open to the public for travel. The allegations compel the inference that it was not, but was in the course of construction, under an uncompleted contract with the state road commission, and that the new construction or cut-off road had not been accepted.

Plaintiff alleges that the contract between the defendants and the state road commission provided that, until the new road was accepted by the state road commission, the new road should be under the care and charge of defendants, that under the contract defendants should maintain a warning sign for the safety of the public at the beginning and at the end of the new road, and that it was defendants' duty to maintain at each end of the new road a warning sign for the protection of travelers.

Under the contract, the duty to maintain warning signs was a matter between the state road commission and the contractors. It is not alleged at what particular point in feet the contract required the warning sign to be placed. It is alleged "at the beginning and at the end." Whether or not there was a breach of the contract by the placing of a warning sign 150 feet from the end of the new road is one thing, and whether it is negligence is quite another. That the state road commission had by the terms of the contract required the erection of warning signs neither helps nor...