Hess v. Robinson

• Decision Date: 16 November 1945
• Docket Number: 6847
• Citation: 163 P.2d 510,109 Utah 60
• Court: Utah Supreme Court
• Parties: HESS v. ROBINSON et al

163 P.2d 510

109 Utah 60

HESS v. ROBINSON et al

No. 6847

Supreme Court of Utah

November 16, 1945

Appeal from District Court, Third District, Salt Lake County; M. J Bronson, Judge.

Action by Delbert E. Hess against B. H. Robinson and others, a copartnership doing business as Wasatch Motors, to recover for injuries sustained when a truck driven by plaintiff collided with defendants' ambulance. From a judgment for plaintiff, defendants appeal.

Affirmed.

Robert A. Burns, E. C. Jensen, and H. P. Thomas, all of Salt Lake City, for appellants.

Stewart M. Hanson, Willard Hanson, and D. N. Straup, all of Salt Lake City, for respondent.

Larson Chief Justice. Turner J., concurs. Wade, Justice (concurring in the result). Wolfe, Justice (concurring in the result). McDonough, Justice, concurs in the opinion of Mr. Justice Wolfe.

OPINION

Larson Chief Justice.

This appeal from the District Court of Salt Lake County presents a single question: Was the negligence of the plaintiff, as a matter of law, a proximate cause of the accident?

On April 6, 1944, an automobile used by defendants as an ambulance collided with a truck driven by plaintiff at the intersection of Grant Avenue and 31st Street in Ogden City, Utah. About 11:30 a. m., plaintiff was driving at 15 miles per hour southward on Grant Avenue, described as a "through street," "stop street," or "arterial highway;" that is, there were "stop signs" against traffic entering Grant Avenue from either side. Defendants were driving their ambulance eastward on 31st Street at a speed variously estimated by the witnesses at from 25 to 50 miles per hour as it approached the intersection with Grant Avenue. The point of collision was about three feet west of the center point of the intersection. The court instructed the jury that both parties were guilty of negligence as a matter of law, but submitted to the jury the question as to whether defendants' negligence was a proximate cause of the accident, and as to whether plaintiff's negligence proximately contributed to the accident. The jury returned a verdict in favor of plaintiff.

No exceptions to the charge that would disturb the verdict are urged by either party. For the purposes of this appeal it is admitted that the evidence sustains a finding that defendants were negligent and that such negligence was a proximate cause of the accident, leaving only the question as to whether the negligence of the plaintiff was, as a matter of law, contributory. "Contributory negligence" is a term used to designate the negligence imputed to the plaintiff, for the purpose of distinguishing it from the negligence imputed to the defendant. It is a concurring negligence -- a negligence which exists independent of, and exists without regard to, the negligence of the defendant. But its role in causing the accident is not independent of the defendants' negligence. Its existence is tested and determined by the same characteristics and kinds of tests as may be applied in determining the negligence of the other party. For negligence to be "contributory" or "concurring" assumes the existence of negligence of the other party which negligence proximately caused the accident. If there was no negligence on the part of defendant, plaintiff's acts or omissions would be the proximate cause of the accident -- it would not be a cause that helped, had a share in, or lent its force in producing or bringing about or causing the accident. It could not "contribute" unless there was some other negligence with which it combined, or to which it added or contributed forces or conditions which became active elements in causing the accident and the effects thereof.

For plaintiff's negligence to be a defense for the defendant, it must not only exist at the same time and place as conditions created or the forces put in operation by the negligence of defendants, but it must set in operation a force, or create a condition, which had a share in producing the injury. Proximate cause of an injury means that the injury was the natural and probable consequence of the negligence and such as ought to have been foreseen in the light of attending circumstances, that is, a consequence which a person of ordinary foresight and prudence would have anticipated. Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S.W. 816, 31 L.R.A. N.S. 1020. To be a proximate cause of an injury it must be an efficient act of causation and separated from its effect by no other act of causation. There must be a causal connection between the act or omission and the subsequent injury.

"The law does not search for the more remote agencies by which an injury is brought about or made possible, but holds the last conscious agent in producing it responsible therefor." Miner v. McNamara, 81 Conn. 690, 72 A. 138, 140, 21 L.R.A. N.S. 477.

It is one that directly causes or contributes directly to causing the result. It must be such action that a person of ordinary caution and prudence would have foreseen that some injury would likely result therefrom. The nearest independent cause which is adequate to and does bring about an injury is the proximate cause thereof. Seith v. Commonwealth Elec. Co., 241 Ill. 252, 89 N.E. 425, 24 L.R.A. N.S. 978, 132 Am. St. Rep. 204. The efficient and predominating cause is considered in law as the proximate cause, although subordinate and independent causes may have existed. In determining proximate cause courts will not so indulge in refinements and subtilities as to defeat substantial justice.

"The proximate cause is the efficient cause; the one that necessarily sets the other causes in operation, [and those] merely incidental, or instruments of a * * * controlling agency, are not the proximate causes * * * though they may be nearer in time to the result." Indianapolis St. R. Co. v. Schmidt, 163 Ind. 360, 71 N.E. 201, 202.

By "proximate cause" is intended an act which directly produced, or concurred directly in producing, the injury. By "remote cause" is intended that which may have happened and yet no injury has occurred, notwithstanding that no injury could have occurred if it had not happened. The term "proximate cause" was originally substantially the same as causa causans, or the cause necessarily producing the result. But the practical construction of the term by the courts has now come to be the cause which naturally led to, and might have been expected to produce, the result. It is a probable cause, one which leads to or may naturally be expected to produce the result. In Stone v. Union Pac. Railroad Co., 32 Utah 185, 89 P. 715, 716, this court said:

"Where an act is one which a person in the exercise of ordinary care could have anticipated as likely to result in injury, then he is liable for any injury actually resulting from it, although he could not have anticipated the particular injury which did occur." See also Restatement of Law of Torts, Vol. II, Sec. 431; Harper on Torts, Sec. 110; Cole v. German Savings & Loan Soc., 8 Cir., 124 F. 113, 59 C. C. A. 593, 63 L. R. A. 416.

When the structure erected by the parties from the evidence is set upon this foundation, does it fit so snugly as to leave but a question of law for the court, or does it require such adjustments as to provide a question for the jury?

On appeal, the only negligence claimed against the plaintiff is the failure to look to the right down 31st Street to see if there were any cars approaching before he entered the intersection. Upon this neglect is set the claim that had he looked he would have seen the ambulance coming and, as a reasonable man, would have anticipated danger and stopped until the ambulance had passed through the intersection. That one approaching an intersection, even on an arterial highway, is not excused from obeying the rules of the road, is elemental. Such person is under the legal duty of making proper observation of traffic approaching on intersecting highways and to use reasonable care and caution to avoid an accident. Even though he has the right of way and even though drivers on intersecting streets are required to stop before entering the intersection, the duty rests upon him to keep a lookout in all situations of which he may be aware. He may not proceed in disregard of danger which common knowledge teaches us may be present. He is under the duty of protecting himself from such acts of others as may be anticipated or foreseen as a source of danger. Sine v. Salt Lake Transportation Co., 106 Utah 289, 147 P. 2d 875; Bullock v. Luke, 98 Utah 501, 98 P. 2d 350; Richards v. Palace Laundry Co. 55 Utah 409, 186 P. 439. The trial court instructed the jury that the plaintiff was negligent in not so looking. But does it follow as beyond dispute that had plaintiff looked and seen the ambulance approaching, reasonable and prudent conduct would have dictated that he stop until the ambulance had crossed the intersection? Are the facts revealed by the evidence so clear and certain that the court could say that for plaintiff to drive into the intersection without stopping was not the act of an ordinarily prudent and careful man? Since such question must be answered from the circumstances existing at the time, we are immediately confronted with the question as to the speed of the ambulance. If the ambulance was coming at 50 miles per hour, as one witness testified, it might suggest to a reasonable man that the ambulance probably would not stop, or at least raise a reasonable apprehension of danger. If, on the other hand, as defendants testified, the ambulance was coming only 25 miles per hour (the course being upgrade), an ordinarily prudent man may conclude that the driver had his car under control and would stop as required by law at the stop sign. As to what the...