Maltby v. Cox Const. Co., Inc.

• Decision Date: 03 July 1979
• Docket Number: No. 15833,15833
• Citation: 598 P.2d 336
• Parties: Phyllis Fletcher MALTBY, Plaintiff and Appellant, v. COX CONSTRUCTION COMPANY, INC., Lonnie Arthur Pritchard, and Mrs. Lorraine Kimball, Defendants and Respondents.
• Court: Utah Supreme Court

Page 336

598 P.2d 336

Phyllis Fletcher MALTBY, Plaintiff and Appellant, v. COX CONSTRUCTION COMPANY, INC., Lonnie Arthur Pritchard, and Mrs. Lorraine Kimball, Defendants and Respondents.

No. 15833.

Supreme Court of Utah.

July 3, 1979.

Melvin G. Larew, Salt Lake City, for plaintiff and appellant.

Wendell E. Bennett, Salt Lake City, for Cox Const. Co., Inc. and Lonnie Arthur Pritchard.

David W. Slagle, Salt Lake City, for Lorraine Kimball.

WILKINS, Justice:

Plaintiff brought action for personal injuries and property damage arising out of a motor vehicle collision. The case was tried before the District Court, Salt Lake County, sitting with a jury. From judgment of no cause of action entered on the jury's verdict, and the denial of her motion for a new trial, plaintiff appeals.

Affirmed. Costs to defendants. All statutory references are to Utah Code Annotated, 1953, as amended.

Interstate Highway 15 (I-15) is comprised of four southbound lanes just outside Salt Lake City until, at approximately 2400 South Street, the eastern two lanes of I-15 veer eastward into Interstate Highway 80 (I-80) and the other two lanes continue southward as I-15.

On June 21, 1974, at approximately 4:00 p. m., as traffic on the freeways started to become heavy with homeward bound travelers, Defendant Kimball, intending to go southward on I-15, found herself in the second eastern lane, and heading toward I-80. Unable to merge into the lane to her right because of the heavy traffic, Kimball pulled into the graveled area between the two diverging freeways, came to a stop on what becomes the left shoulder emergency lane of I-15, and waited for an opportunity to merge into the I-15 traffic.

Plaintiff was traveling in the second lane on the west, two or three cars behind the Kimball vehicle. She testified that Kimball suddenly and unexpectedly cut in front of her across the dividers between the I-80 lanes and the I-15 lanes, causing her to make an emergency stop to avoid a collision. ¹ All other observers testified that Kimball came to a complete stop outside the traveled lanes, and that plaintiff stopped one or two car lengths behind the Kimball vehicle, but in the traveled lane.

Defendant Pritchard, an employee of Defendant Cox Construction Company, was driving a semitrailer loaded with 80,000 pounds of sand and was traveling behind plaintiff at approximately 45 miles an hour. As Pritchard came over a crest in the freeway, approximately 500 feet north of the point where these lanes diverge, he observed plaintiff's vehicle slowing and coming to a stop in his lane. Unable to enter the lane to his right because of the presence of a pick-up truck in that lane, Pritchard applied both foot and engine brakes, shifted his gears down, and swerved to the right. The truck hit the rear tail light of plaintiff's car at less than 10 miles per hour.

Plaintiff introduced no evidence of medical expenses nor expenses related to the damage of her car, but relied on the testimony of a forensic pychiatrist, Doctor Jack L. Tedrow, who testified that the collision had caused traumatic neurosis in plaintiff characterized by extreme fears, social withdrawal and depression, with an emphasis on her own aches and pains (hypochondriasis) to the extent that she was 25 percent disabled, unable to do simple household chores, and became hyperventilated in traffic situations and in crowds of people.

Defendants introduced evidence that plaintiff had been involved in two previous automobile accidents, one in 1964 for which she claimed disability from her own insurance company, and another in 1970, for which she brought action for damages, claiming 30 percent disability for the same symptoms of traumatic neurosis claimed in here. ² Plaintiff has not held a job since 1964.

Defendants called Doctor Thomas Noonan, an orthopedic surgeon, who testified that based upon his physical examinations of plaintiff, and his examination of x-rays taken of her spine in 1971, 1974 and 1976, it was his opinion that her permanent impairment of movement pre-existed the collision of June, 1974, the subject matter of this action.

Plaintiff called a Mr. Lord, an "accident reconstructionist," who testified that from his calculations that Defendant Pritchard should have been able to stop his truck within 200 feet on this particular surface. He agreed that his calculations depended upon successfully having all wheels in a locked or skid position. He testified that the truck could be stopped in the same distance as plaintiff's passenger car. Defendant Pritchard called Defendant Kimball's husband, Don Kimball, who testified that he had been driving a truck as his occupation for 35 years, during which time he had also driven passenger automobiles. He testified that in his experience he had found it impossible to stop a tractor hauling an 80,000-pound load on a 2 percent downgrade within 200 feet, for the reason that it is impossible to get all 18 wheels into skid position within the few seconds it takes to cover that distance. He testified that the truck could not be stopped in the same distance as the passenger car.

Special Interrogatories were submitted to the jury pursuant to Rule 49(a), Utah Rules of Civil Procedure, and in its answers thereto, the jury found neither Defendant Kimball nor Defendant Pritchard negligent; found plaintiff 100 percent negligent; found that her negligence was the proximate cause of the collision; and found that plaintiff had suffered no damages.

Plaintiff first argues that both defendants were negligent as a matter of law, and the Court erred in finding each defendant entirely free from negligence, and in entering judgment based on those findings.

It must be observed that, as this was a Jury trial, the Court made no such findings of fact. Further, issues of fact are within the province of the jury, and this Court will not substitute its judgment for that of the jury where its verdict is supported by substantial credible evidence. ³

Plaintiff contends that Defendant Kimball was in violation of Section 41-6-103 ⁴ when she stopped in the emergency lane of the freeway, and being in violation of a state statute, Kimball was therefore negligent as a matter of law. Plaintiff relies on Gibbs v. Blue Cab, 122 Utah 312, 249 P.2d 213 (1952) for this proposition, and asserts as error, the Court's failure to instruct the jury on this theory.

No instructions concerning negligence per se were requested by plaintiff, and the statute in question was not brought to the attention of the Court. Likewise, no exceptions to the Court's instructions given on the issue of Kimball's alleged negligence were taken by plaintiff, and she cannot claim error for the first time on appeal. ⁵ Further, a finding of Some negligence on the part of Kimball based on the violation of this statute would not be helpful to plaintiff, for, pursuant to our comparative negligence statute, ⁶ the jury must find that she was more than 50 percent negligent, or plaintiff cannot recover. And we do not believe that any such error, assuming Arguendo that there was one, was prejudicial to plaintiff where the jury also found that plaintiff had sustained no damages.

Plaintiff argues that Pritchard was also negligent as a matter of law, and relies on the case of Brock v. Ward, 28 Utah 2d 303, 501 P.2d 1207 (1972). The rule applied in that case had its genesis in Dudley v. Mid-Western Dairy, 80 Utah 331, 15 P.2d 309 (1932), and is sometimes referred to as the "look, see and heed" rule. ⁷ The Brock case has no application here, as Pritchard testified that he saw the car in his path, and took immediate action to avoid it.

Plaintiff next contends that the Court erred in refusing her requested instruction No. 9 with regard to the alleged negligence of Pritchard. That instruction states:

You are instructed that the fact that a driver of a vehicle collides with a rear-end on another vehicle stopped or slowing on the highway in front of him, furnishes some evidence that such defendant driver was either driving at too high a rate of speed or was following too closely.

This requested instruction is tantamount to an instruction that rear-end collisions are invariably the result of the negligence of the driver of the following vehicle. The instruction was properly refused. The Court properly instructed the jury as to the duties and responsibilities of each of these parties to keep a proper lookout, to keep their respective vehicles under proper control, and to use such care as a reasonable prudent person would use under the circumstances. The jury was persuaded that Pritchard's actions were reasonable under these circumstances, and that plaintiff's were not. As there is substantial credible evidence on which to base these findings, the jury's verdict will not be disturbed. ⁸

Plaintiff also contends that the Court erred in allowing Don Kimball to testify, rebutting the testimony of her expert witness, Mr. Lord, over the objection of the plaintiff. Her contention is that Kimball was not sufficiently qualified as an expert witness on the subject of the stopping distances of the particular truck in question. It is largely within the discretion of the trial judge to pass on the qualifications of a witness as to whether he can give sound and reliable help to the jury with regard to subjects within his expertise. ⁹ The knowledge of such a witness may have been acquired through formal education and study, but may also have been acquired through experience. ¹⁰ The rulings of the...