Horsley v. Robinson

• Decision Date: 06 November 1947
• Docket Number: 6940
• Citation: 186 P.2d 592,112 Utah 227
• Court: Utah Supreme Court
• Parties: HORSLEY v. ROBINSON et al

186 P.2d 592

112 Utah 227

HORSLEY v. ROBINSON et al

No. 6940

Supreme Court of Utah

November 6, 1947

Appeal From District Court, Third District, Salt Lake County; C E Henderson, Judge

Action by Erma D. Horsley against B. H. Robinson and others, doing business as the Utah Transportation Company, and another to recover for injuries sustained in a collision between the company's bus and an automobile. Judgment for the plaintiff against the company and the company appeals.

Judgment affirmed.

Moyle McKay, Burton & White and R. A. Burns, all of Salt Lake City for appellants.

Hanson & Hanson, for defendant.

Judd Ray, Quinney, & Nebeker, all of Salt Lake City, for respondent.

McDONOUGH C. J., concurs in the opinion of Mr. Justice WADE as elucidated by the opinion of Mr. Justice WOLFE.LATIMER, Justice, not participating.

OPINION

WADE, Justice.

The defendant, Utah Transportation Company, appeals from a $ 5,175 verdict in favor of plaintiff Erma Horsley for damages suffered in an accident while riding as a passenger for hire in a bus operated by the transportation company between Hill Field and Salt Lake City. The same jury returned a verdict of no cause for action in favor of the defendant Reinhardt.

There was an aisle down the center of the bus with seven double seats on each side and one long seat for five persons across the rear end, thus seating 33 persons besides the driver. In the accident plaintiff was thrown forward causing her throat to strike against the back of the seat in front of her and thereby causing injuries which affected her voice.

The accident occurred about 5:25 p. m. on January 23, 1944, in Davis County a short distance north of the Salt Lake-Davis County Line on highway 91, the main highway between Ogden and Salt Lake City. The paved portion thereof consists of four 10 foot traffic lanes with a 13 foot shoulder on each side. At the time of the accident the shoulders were lined with snow banks which substantially reduced their width; the highway was covered with ice, and slush and a sleet of snow and rain was falling, thus rendering driving conditions very hazardous. While the bus was proceeding southward at a speed between 20 and 50 miles per hour in the outside west traffic lane on the driver's extreme right-hand side of the highway in the proximity of a long and very gradual curve and on a slightly down hill slope, the defendant Reinhardt was approaching driving his car from the opposite direction at from 20 to 30 miles per hour in the east traffic lane next to the center of the highway, when suddenly Reinhardt's car went out of control and swung around so that it was facing to the south in the outside west traffic lane and directly in the course of the oncoming bus. While the car was moving slowly toward the south the left front side of the bus ran into the rear right side of the car thereby shoving it down the highway a distance of from 30 to 50 feet where it was stopped by colliding with another car on the highway. By the impact with the Reinhardt car the bus was turned slightly to the west where it ran into another automobile which was parked on the west shoulder which deflected its course toward the east and it finally came to a stop in the snow bank on the east side of the highway about 75 feet from the parked car.

The terms 'between distance' and 'distance between' used throughout this opinion to indicate the distance between the bus and the Reinhardt car when it first became discernible that the latter was out of control, and the term 'due care speed' used to indicate a reasonable speed in view of the surrounding circumstances, were suggested by Mr. Justice Wolfe. The word 'control' is used herein in its ordinary sense to mean the ability of the driver to stop or reduce the speed of his vehicle within a reasonable distance and to guide the same in the desired course.

From the evidence it is clear that when the Reinhardt car commenced to turn it was within full view of the driver of the bus but that he did not slacken his speed prior to the collision nor apply his brakes until within 5 or 10 feet of the Reinhardt car. From these facts one of three things or a combination thereof must have caused the accident: (1) the Reinhardt car went out of control and into the course of the bus when it was so near thereto that there was no time for the bus driver to do anything to avoid the accident; (2) the driver of the bus, although he had sufficient time and had the bus under sufficient control to avoid the accident failed to see that the Reinhardt car was turning into his course in time to avoid the accident, or seeing it in time failed to exercise the necessary control to avoid the accident; or (3) the bus driver, although he had sufficient time after the Reinhardt car commenced to turn into his course to avoid the accident had he had the bus under control, did not have the bus under sufficient control to avoid the accident.

If the Reinhardt car went out of control and into the course of the bus when it was so near thereto that the driver did not have time to avoid the accident then defendants were not negligent and plaintiff cannot recover. Cederloff v. Whited, Utah, 169 P.2d 777; Hart v. Kerr, Utah, 175 P.2d 475. If the second proposition above stated was the cause of the accident then clearly the defendants were negligent and such negligence proximately caused the accident because clearly the driver owes a duty to keep a proper lookout and see substantial objects on the road in front of him and to take the necessary steps to avoid colliding therewith and if he failed to do so he is liable for the damages resulting therefrom. However, I am not sure that the evidence would justify the jury in finding that such was the cause of the accident. If the accident was caused by the third set of facts above set out then the jury could from the evidence find facts sufficient to sustain a finding that the driver negligently operated the bus at such a speed that he was unable to maintain sufficient control thereof to avoid the accident. So it is necessary to analyze the evidence and determine what facts the jury could reasonably find therefrom.

The controlling facts for the jury to determine are: (1) At what rate of speed was the bus travelling at the time of the accident? (2) How far was the between distance? (3) Did the driver have sufficient control over the bus to stop it within the between distance? And from those facts the jury would have to determine whether the defendants were guilty of negligence which proximately caused the accident and injuries. The jury had before it evidence that the bus was traveling as slow as 20 and as fast as 50 miles per hour.

From all the evidence how fast could the jury reasonably find the bus was traveling? The testimony adduced by the defendants fixed its speed at from as slow as 20 to slightly faster than 25 miles per hour, and plaintiff fixed it at 50 miles per hour. The fact that the bus struck the Reinhardt car and shoved it from 30 to 50 feet where it was stopped when it hit a parked car, and the fact that after striking the Reinhardt car the bus swerved to the right into another parked car and was deflected to the left across the highway where it was stopped by a snow bank about 75 feet from the parked car indicates that it was traveling with considerable speed. The evidence would sustain a finding by the jury that the bus was traveling as fast as 40 miles per hour.

What is the maximum which the jury, from the evidence, could find the between distance was? Plaintiff testified that that distance was a Salt Lake City block (660 feet), Reinhardt estimated it at less than 300 feet and the bus driver estimated it at 75 to 100 feet. These were all interested witnesses but six passengers on the bus at the time of the accident were called by the defendants who testified at various distances ranging from 30 feet to 330 feet. All of them except one fixed it at 150 feet or less. The sixth witness was a Mrs. Sessions who when on direct examination by defendants' counsel without leading was asked what that distance was answered twice that it was about a half a Salt Lake City block (330 feet). Later defendants' counsel led her into estimating that distance at about the width of a Salt Lake City street (100 feet). Apparently she did not recognize that this testimony was in conflict with her previous statement. From the position the Reinhardt car was struck and the testimony of all the witnesses it had turned completely in the opposite direction and was traveling slowly toward the south, the same direction that the bus was going. This would require some time. From all of the evidence we conclude that the jury could have reasonably found that the between distance was as far as 330 feet.

It is argued that since there is no evidence of the distance required to stop the bus under the then existing conditions at any given rate of speed the evidence is not sufficient from which the jury could find the defendants guilty of negligence which proximately caused the accident. If plaintiff must, in order to make a case, show that the driver could have stopped the bus within the between distance then her evidence is clearly insufficient to justify a finding in her favor, because the evidence does not justify such a finding.

On the contrary the evidence points definitely to the fact that the driver did not have the bus under sufficient control so that he could either bring it to a stop, reduce its speed, or steer it to one side sufficiently to avoid the accident within the in between distance. And this is true even though that distance was as far as 330 feet.

The following facts quite definitely point to that conclusion The icy highway covered with snow and slush...