Lochhead v. Jensen

• Decision Date: 30 December 1912
• Docket Number: 2392
• Citation: 42 Utah 99,129 P. 347
• Court: Utah Supreme Court
• Parties: LOCHHEAD et al. v. JENSEN

129 P. 347

42 Utah 99

LOCHHEAD et al. v. JENSEN

No. 2392

Supreme Court of Utah

December 30, 1912

APPEAL from District Court, Second District; Hon. N. J. Harris Judge.

Action by Pearl H. Lochhead and others against Jacob Jensen.

Judgment for plaintiffs. Defendant appeals.

REVERSED AND NEW TRIAL GRANTED.

J. E Bagley and J. G. Heywood for appellant.

Richards & Boyd for respondents.

STRAUP J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

This is an action to recover damages for the death of William S. Lochhead, alleged to have been caused by the negligence of the defendant. In the complaint it is alleged that the deceased, at the invitation of the defendant, entered the defendant's automobile to take a ride, and that "the defendant acted as operator or driver of his said automobile, and determined and regulated the speed at which it should run, and while the deceased was so riding with him as his guest, at or near Pleasant View, in utter disregard of his duty in that respect, the defendant negligently, carelessly, and recklessly caused his said automobile to run at a furious and dangerous rate of speed, to wit, at the rate of about fifty miles an hour, and so fast that the automobile violently jumped and overturned, thereby forcibly throwing the deceased upon and against the ground," by reason of which he was injured and killed. The foregoing allegations with respect to the speed at which the automobile was operated are the only charged acts of negligence. They were put in issue. The trial resulted in a verdict and judgment in favor of the plaintiffs. The defendant appeals. He claims that the evidence is insufficient to support the allegations of negligence, and that the court erred in the charge.

The evidence shows that the deceased entered the defendant's automobile at the defendant's invitation, and that the automobile was operated by the defendant along a highway in the country. The accident happened between three and four o'clock in the afternoon. There were three persons in the automobile, the defendant, the deceased, and one Sanderson. Sanderson, a witness called by the plaintiffs, testified that the speed of the automobile at the time of the accident was about fifteen miles an hour; that at the place of the accident there were "dust holes" or "ruts" in the road; that it was "pretty rough;" that the ruts or holes were partially covered or filled with dust or sand; and that the automobile struck or "bumped" into one of the holes or ruts and "slid" or "skidded" first to the one side and then to the other of the road, and left it and ran into or over a ditch and "somersaulted," casting the deceased out. He further testified that "it would not have been possible for us to observe that there was a depression or ditch where this machine went off of the main line;" that "there was nothing to obscure our vision ahead when we were approaching this place," but, "approaching the place where the machine went down, looking ahead it presented the appearance of the level of a street." Other witnesses for plaintiffs testified that the road at the place of the accident was smooth and in good condition, except for dust and small ruts; that shortly after the accident they noticed tracks of the automobile, showing that it had moved from one side of the road to the other and went down the embankment. Another witness testified that he saw the tracks where the automobile left the road, and that they led to a "chuck hole" in the road, which was struck by the automobile. Other witnesses for the plaintiffs testified that between two and three o'clock they, some distance from the place of the accident, met an automobile going "very fast," in which were three men; but they were unable to identify or describe either the automobile or the occupants. Still another witness, about 350 feet away, drying fruit, testified that she heard the noise of the automobile, glanced down the road, and it appeared to her "like the machine raised right up in the middle of the road, like the front wheels went in the air," and "then turned to the south of the road" and went over. The defendant testified that, while operating the automobile in about the center of the road, along the place of the accident, at a speed of about fifteen or eighteen miles an hour, "the machine skidded to the north and then to the south and went off the road, and, as I was trying to get back on the road, struck something and turned over. . . . Just before this there were chuck holes in the road." The machine "struck the chuck holes. There were three or four right close together. . . . That caused me to turn over this way a little and then to the left. . . . The machine skidded and then jumped off into the ditch."

Now upon this evidence, what was the highest speed the jury were licensed to find the automobile was run at the time of the accident? We think at fifteen or eighteen miles an hour. The testimony of those that they, some distance...