Johnson v. Cornwall Warehouse Co., 9921

• Decision Date: 28 February 1964
• Docket Number: No. 9921,9921
• Citation: 15 Utah 2d 172,389 P.2d 710
• Parties: d 172 Calvin H. JOHNSON, Plaintiff and Appellant, v. CORNWALL WAREHOUSE COMPANY, and Ernest James, Defendants and Respondents, and Cross Appellants.
• Court: Utah Supreme Court

Page 710

389 P.2d 710

15 Utah 2d 172

Calvin H. JOHNSON, Plaintiff and Appellant, v. CORNWALL WAREHOUSE COMPANY, and Ernest James, Defendants and

Respondents, and Cross Appellants.

No. 9921.

Supreme Court of Utah.

Feb. 28, 1964.

Dwight L. King, Gayle Dean Hunt, Salt Lake City, for plaintiff and appellant.

Raymond M. Berry, Salt Lake City, for defendants and respondents.

WADE, Justice.

Calvin H. Johnson, plaintiff below and appellant herein, appeals from a judgment of nonsuit by the court notwithstanding a jury verdict in his favor granting damages hor his automobile and for personal injuries suffered in an intersection collision between his car and a truck owned by the Cornwall Warehouse Company and being driven by its agent and employee, Ernest James, the defendants and respondents herein.

The collision occurred in the intersection of Second South and Third West Streets in Salt Lake City, Utah. Neither driver saw the other car in the intersection until just before the impact. In a special verdict submitted to them on the question of contributory negligence of the plaintiff the jury found there was not a preponderance of the evidence either way as to whether he kept a proper lookout, but found that he did not fail to yield the right of way nor did he fail to have his automobile under control. The court nevertheless concluded that plaintiff was guilty of contributory negligence in failing to keep a proper lookout, and in failing to yield the right of way to defendants' vehicle which had entered the intersection first and at a time when plaintiff was not in the intersection or so close as to constitute an immediate hazard.

In view of the jury's findings we view the evidence in a light most favorable to plaintiff. In such a light it would appear that plaintiff first observed the truck which collided with his car when it was stopped at a stop sign on the north side of Second South and Third West as he was traveling in an easterly direction while crossing some railroad tracks west of Third West on Second South when he was about 150 feet from the intersection and again when he was about 75 feet from the intersection of those streets. As he continued traveling he looked to the south and east and had entered the intersection when he looked to the north again which was immediately before he was struck by the truck. He was traveling between 20 and 25 miles per hour. He was the favored driver to enter the intersection first if a vehicle was not already in it or so close to coming in as to constitute a hazard since he was traveling in an easterly direction and for traffic traveling in an easterly direction Second South Street was a through street ¹ at its intersection with Third West Street. At that intersection there are stop signs for north, south and westbound traffic but not for eastbound traffic. The accident occurred about 4:45 p. m. when traffic was heavy. Plaintiff was almost two-thirds across Third West Street when the left rear side of his car was hit by the truck. The intersection is about 95 feet wide on Third West and about 92 feet wide on Second South from curb to curb.

The driver of the truck estimated that plaintiff's car was about 100 feet away from the intersection when a traffic break occurred and he started to get into the intersection to make the turn into Second South. He estimated his speed as between 7 and 10 miles per hour, although he had no speedometer in his truck. Plaintiff in the short space of time he saw the truck had the impression it was barreling into him. From the physical evidence it appears that plaintiff's car was approximately 78 feet east of the west curb of Third West Street while the truck was about 56 feet south of the north curb of Second South Street when the impact occurred.

Although from the testimony of the driver of the truck it could have been found that he first observed plaintiff's car when it was about 200 or 150 feet from the west curb of Third West and about 100 feet away from the intersection when he started to make his turn at a speed of about 5 to 10 miles per hour, these were mere estimates and the jury was not bound to believe them. The jury found that plaintiff had not failed to yield the right of way. Such a finding can only be...