Hillyard v. Utah By-Products Co.

• Decision Date: 12 November 1953
• Docket Number: No. 7502,BY-PRODUCTS,7502
• Citation: 263 P.2d 287,1 Utah 2d 143
• Parties: d 143 HILLYARD, v. UTAHCO.
• Court: Utah Supreme Court

Page 287

263 P.2d 287

1 Utah 2d 143

HILLYARD, v. UTAH BY-PRODUCTS CO.

No. 7502.

Supreme Court of Utah.

Nov. 12, 1953.

Ray, Quinney & Nebeker, Grant C. Aadnesen, Salt Lake City, for appellant.

Mark K. Boyle, Glen C. Hanni, Salt Lake City, for respondent.

CROCKETT, Justice.

Robert Reif, plaintiff's son, was killed when the car in which he was riding as a guest crashed into the rear of defendant's truck which was parked with its rear end protruding out onto the highway. From a jury verdict and judgment in favor of the plaintiff, defendant appeals.

Defendant's assaults upon the judgment form a not unfamiliar pattern:

1. That the deceased was guilty of negligence which contributed to cause his own death;

2. That the deceased's host driver was negligent which was the sole proximate cause of the collision;

3. That there was insufficient evidence that the defendant's conduct was negligent or that it proximately caused the death;

4. That the court erred in certain instructions to the jury.

In surveying the evidence, wherever there is conflict, we of course view it in the light most favorable to the plaintiff. ¹

Ronald I. Moore, in the course of his employment as truck driver for the defendant company, on the afternoon of April 20, 1949, drove its truck eastward on 27th South Street in Salt Lake City and parked it in front of his home at 480 East 27th South Street. That street is well traveled, arterial, has a surfaced portion 24 feet wide; south of the surfacing the shoulder extends 7 feet to a rock-lined ditch about 18 inches wide. Although there is a nine-foot driveway on the east side of Moore's house where he could have parked, he parked the truck on the street diagonally, with the right front wheel even with his mailbox post and so that its rear end extended 5 feet out onto the paved portion. This left only a 7 foot channel for east bound traffic using the south half of the highway.

That day Robert Reif had been working at a used car lot on State Street; Vaughn Aston had waited around for him, whiling away the time listening to the radio. They lunched together; with it each had a bottle of beer. About 4 p. m. Reif got into Aston.'s car with him. They each then had another bottle of beer which they opened and were drinking as they proceeded up eastward on 27th South. Aston passed one car at about 35 miles per hour (the prescribed speed limit was 25) and continued to accelerate to about 20 miles per hour, passing two other cars. As he attempted to pass a third car, he saw he would be unable to do so because of traffic coming toward the west, so he swung to his right behind this third car; just as he did so, it turned to its left to avoid the parked truck, the Aston car crashed into the left rear end of the truck which was extending out onto the pavement. The impact pushed the truck about 50 feet easterly; Robert Reif was killed in the crash.

Defendant's argument that the deceased was guilty of contributory negligence is based on the contention that he should have made some protest or outcry and that, having failed to do so, he acquiesced in the obviously negligent conduct of Aston. Neither reason, nor the authorities cited by the defendant in support of its claim indicate that there is any set pattern as to when a guest should make proest or outcry or attempt to assist in the operation and control of an automobile. Ordinarily he has the right to place some reliance upon the prudence, care and skillfullness of the driver. It is only when the guest knows, or in the exercise of ordinary care should know that the driver lacked such qualities, or is being careless that it becomes the guest's duty to consider doing something about the operation of the car. In the Esernia ² case cited by defendant, where such duty was recognized, the passengers were fully aware of the sleepy condition of the driver; he had already run off the road once and had stated that he was so sleepy that he didn't know whether he could keep awake, after which there had been ample opportunity to leave the truck. Likewise in the case of Maybee v. Maybee, ³ the plaintiff, whose mother was the driver knew of her mother's nearsightedness and that she was driving without glasses; so she was fully aware of the serious defect in her mother's ability to drive safely, yet she acquiesced in the situation and abandoned the care of the car to her mother to such an extent that she was content to read a book during the drive.

Other authorities cited are not inconsistent with the principle that it is only when a guest is aware of danger for sufficient time to give a warning and reason would dictate that he do so that due care would require that he utter a protest. Prudence would not always dictate that he do so when a driver suddenly becomes reckless. It might actually distract, annoy or even vex a reckless driver, thus adding to rather than detracting from the danger of the situation. Unless the matter is so clear that reasonable minds could not differ thereon, it would be a question for the jury whether an ordinary reasonable and prudent person under the circumstances would vocally object to the driving. Here there is no indication that Robert Reif knew Aston had any disability or predisposition to carelessness before this incident; it cannot be said as a matter of law that his failure to make an outcry or protest rendered him guilty of negligence. The question was properly submitted to the jury and the verdict indicates that they did not find him lacking in due care in that regard.

From the facts shown as to the manner in which deceased's host driver Aston operated his car, passing the cars at 50 miles per hour in a 25 mile zone with a bottle of beer in one hand, there is no doubt that there was sufficient evidence to make a jury question both as to his negligence, and as to whether it was a proximate cause of the collision. This, however, does not preclude the defendant from also being held responsible. It has frequently been recognized that more than one separate act of negligence, even though they do not happen simultaneously, may be proximate causes of an injury. ⁴

The question of critical importance and interest here is: must it be said as a matter of law that the negligence of Aston just adverted to, was the sole proximate cause of the collision and death; or was the parking of the truck on the highway by Ronald Moore a negligent act which was also a concurring proximate cause?

In addressing the question whether the parking of the truck on the highway was an act of negligence, it should be remembered that an act is not necessarily rendered non-negligent merely because it may be said that no injury would result to another except for some subsequent act of negligence. One is guilty of negligence when 'he does such an act or omits to take such a precaution that under the circumstances present, as an ordinary prudent person, he ought reasonably to foresee that he will thereby expose the interests of another to an unreasonable risk of harm.' ⁵ When one does so he may be held liable for resulting injuries caused by any reasonably foreseeable conduct whether it be innocent, negligent or even criminal. ⁶

The parking of a vehicle upon the paved or traveled portion of a highway is generally regarded as a hazard to traffic thereon. ⁷ The 12 foot lane was undoubtedly made that wide so that motor vehicles, most of which are about 6 feet in width, would have a reasonable margin of safety on either side in traveling the highway. The truck infringing 5 feet thereon, leaving only 7 feet as a clear channel for eastbound traffic, amounted to a substantial obstruction of the highway, so narrowing it as to add considerably to the risk of accidents. It is not at all unlikely that cars approaching from opposite directions might reach the point simultaneously, resulting in a 'squeeze' for the estabound car with barely inches clearance on either side. From this circumstance it might well have been foreseen that a natural and probable consequence would be some mishap of the general nature as that which did occur, which is the test to be applied: '* * * the test of liability is not whether * * * the defendant could * * * have foreseen the precise form in which the injury actually resulted, but he must be held for anything which * * * appears to have been a natural and probable consequence of his act. If the act is one which [he] * * * could have anticipated as likely to result in injury, * * * although he could not have anticipated the particular injury which did occur.' ⁸ The court was therefore justified in submitting the question of defendant's negligence in parking the truck to the jury; and the latter were warranted in finding that such negligence existed.

We now confront the defendant's further contention, that even if the finding that the parking of the truck was an act of negligence be justified, that the later occurring negligent act of Aston in running into it in broad daylight was the immediate, efficient and therefore the sole proximate cause of the injury; its position being that the circumstances shown in evidence were such that the only permissible finding would be that Aston's negligence was such an intervening act as to supersede and insulate the parking of the truck from being a substantial factor in causing the collision. It is uniformly affirmed by leading authorities that this argument would only be valid if Mr. Aston's conduct was so unusual, so out of the ordinary, so unforeseeable as to be unanticipatable from a legal point of view. Professor Bohlen has written: ⁹

'The earlier of the two wrongdoers, even though his wrong has merely set the stage on which the later wrongdoer acts to the plaintiff's injury, is in most jurisdictions no longer relieved from responsibility merely because the later act of the other wrongdoer has been a means by which his own misconduct was made harmful. The test has come to be whether the later act, which...