Jackson v. Utah Rapid Transit Co.

• Decision Date: 06 September 1930
• Docket Number: 4975
• Citation: 77 Utah 21,290 P. 970
• Court: Utah Supreme Court
• Parties: JACKSON v. UTAH RAPID TRANSIT CO

290 P. 970

77 Utah 21

JACKSON v. UTAH RAPID TRANSIT CO

No. 4975

Supreme Court of Utah

September 6, 1930

Appeal from District Court, Second District, Weber County; E. E Pratt, Judge.

Action by Annie E. Jackson against the Utah Rapid Transit Company. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

A. W Agee and De Vine, Howell, Stine & Gwilliam, all of Ogden, for appellant.

Joseph E. Evans, of Ogden, for respondent.

STRAUP J. CHERRY, C. J., ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

STRAUP, J.

This action was brought to recover damages for alleged personal injuries resulting from a collision in Ogden City between the defendant's street car and an automobile owned and operated by the plaintiff's husband and in which the plaintiff was an occupant, as alleged by her a guest or invitee. The case was tried to a jury resulting in a verdict and judgment in favor of the plaintiff, from which the defendant appeals.

The negligence charged against the defendant was that it, at and toward a temporary crossing over its street car track, negligently ran one of its street cars without giving any warning signals of its approach, without keeping a reasonable or proper lookout in approaching the crossing, and in not having the street car under reasonable and proper control, by reason of which it was operated against and collided with the automobile while plaintiff's husband was driving over the crossing.

The answer denied the charged negligence, admitted that the plaintiff sustained "some injury," and alleged that "the plaintiff was riding in an automobile operated by her husband for the mutual benefit of both the plaintiff and her said husband, and that whatever injury the plaintiff sustained by reason of said collision was caused by her own negligence and by the negligence of her said husband, and without fault or negligence of the defendant." In no other manner or particular was it charged that either the plaintiff or her husband was negligent, or as to what either did or omitted to do which was claimed to be negligent.

Twenty-Sixth street is a public thoroughfare running east and west, and Washington avenue the main public thoroughfare running north and south, through the business district of Ogden. The defendant operated a street car line running north and south upon and along the center of Washington avenue. At the time of the accident and prior thereto, repairs were being made in the street at the intersection or crossing of the two streets, which prevented the operation of street cars, automobiles, and other vehicles over the crossing. Street cars operated on Washington avenue from the south were operated to the crossing and there stopped as a terminal and then went back. So, as to cars operated on Washington avenue from the north. Operators of automobiles and other vehicles driving east and west along Twenty-Sixth street and approaching the crossing and desiring to continue on Twenty-Sixth street were required to drive about fifty feet south of the crossing and along Washington avenue and there cross the street car track where a sort of temporary crossing was provided, and then north on the other side of Washington avenue back to Twenty-Sixth street. In the afternoon of the day of the accident the plaintiff and her husband in a sedan automobile owned and driven by him went to a theater in the city. A sister of the plaintiff went with them. After the theater the sister, who lived in a different part of the city than did the plaintiff and her husband, was driven to her home. The plaintiff and her husband then proceeded toward their home. In doing so they drove east along Twenty-Sixth street west of the crossing of that street and Washington avenue. It was about 6 o'clock in the evening and in broad daylight. The husband was driving the automobile, which was a left-hand drive. The plaintiff was seated in the back seat. When the automobile came to the crossing it was driven south on the west side of Washington avenue with the intention of crossing the street car track at the temporary crossing about fifty feet south of the crossing where the repairs were being made, and then north on the east side of Washington avenue back to Twenty-Sixth street, and thence east on that street to the residence of the plaintiff and her husband. When the automobile from the west on Twenty-Sixth street approached the crossing, two street cars were standing on the track, one in front of the other, immediately south of the crossing where the repairs were being made, and as the automobile made the turn and was driven south on Washington avenue toward the temporary crossing, one of the cars moved forward and was operated past the automobile and toward and over the temporary crossing and then continued on south. The other street car remained standing. The plaintiff and her husband testified that when the automobile approached the temporary crossing, and when about opposite it and about ten or fifteen feet west of it, the husband, the driver, gave a left-hand signal by extending his arm preparatory to making the turn to go over the temporary crossing, and as he did so, both the plaintiff and her husband looked to the north and saw the street car still standing about fifty feet away; that automobiles were parked at the curb along the east and west sides of Washington avenue and other automobiles operated along the avenue on both sides of it; that because of the condition of the temporary crossing and of the traffic, the automobile driven by the husband was operated over the crossing at a speed of only from five to six miles an hour; and that as the husband was attempting to drive over the crossing, the street car standing just south of the main crossing, without signals or warning, was put in motion and operated toward the temporary crossing and struck the hind part of the automobile as only the hind left side wheel of the automobile was on the last or east rail of the track. The rest of the automobile had passed over and was clear of the track. The plaintiff and her husband both testified that their hearing was good and that they heard no gong sounded or other signals or warnings given of the approach of the street car. As they testified, the first knowledge they had of its approach was when the plaintiff discovered it ten or fifteen feet away and exclaimed to her husband, "Oh Daddy, that car is going to strike us," and that the husband discovered the car too late to avoid the collision; that after they saw the street car standing as the husband gave the signal and turned and was about to drive over the crossing, their attention was somewhat diverted to the traffic and to automobiles approaching them to their right on the east side of Washington avenue; and that they did not again look north along the track to see whether the street car was still standing or not, until the plaintiff discovered it ten or fifteen feet away.

Two witnesses who were passengers on the street car and called by the defendant testified that they were on the street car about five minutes before it started; that they talked with the operator who was both the motorman and the conductor; that the motorman before he started the car sounded the gong two or three times, looked out of the back and the sides of the car, closed the door, and started the car in motion; that at that time the automobile driven by plaintiff's husband just turned the corner as it entered Washington avenue from Twenty-Sixth street, passed the street car in motion, and without warning was driven immediately in front of it in attempting to pass over the temporary crossing, and was struck by the street car. Two other witnesses who were in an automobile driven along the east side of Washington avenue also were called by the defendant, who testified that the motorman before starting the street car sounded the gong two or three times, and that when the street car was in motion, the automobile driven by plaintiff's husband was driven along the side of the street car, and when about ten feet in advance of it, the automobile without warning was turned and driven in front of the street car, when the collision resulted. The motorman was not called as a witness by either party.

In plaintiff's case in chief, the husband, after having testified concerning the collision, seeing his wife bleeding from injuries produced by broken glass, taking her to a drug store about 100 feet away, and returning in about three or four minutes after the collision to the automobile and street car where the motorman still was, over objections of the defendant, was permitted to testify that immediately on his return and before the automobile had been moved after it was struck, he said to the motorman, "What the hell is the matter with you, feller, you didn't need to do that," and that the motorman said, "I didn't see you, I was looking at the back end of the car," and that in about a minute afterwards the motorman left and went to the drug store. Over objections of the defendant, the plaintiff was permitted to testify that a few minutes after she had been taken to the drug store, the motorman came in and asked her, "Are you hurt lady," and that she said, "I am hurt pretty bad," and that the motorman in reply said, "I am sorry, I didn't see you, I was looking at the rear end of the car"; and that the motorman then went over to a nearby telephone and talking with some one over it in substance said that he had met with an accident, ran into some one, didn't see it, and practically said the same thing he had told her. She testified that she did not know whether the motorman was talking to some one in the defendant's office or to some one at the police station. A policeman who was near by when the...