Marsh v. Irvine, 11255

• Citation: 449 P.2d 996,22 Utah 2d 154
• Decision Date: 24 January 1969
• Docket Number: No. 11255,11255
• Parties: d 154 Parley MARSH, Plaintiff and Respondent, v. Robert Bryce IRVINE, Defendant and Appellant, James Blackwood Neil, Defendant and Respondent.
• Court: Supreme Court of Utah

Page 996

449 P.2d 996

22 Utah 2d 154

Parley MARSH, Plaintiff and Respondent, v. Robert Bryce IRVINE, Defendant and Appellant, James Blackwood Neil, Defendant and Respondent.

No. 11255.

Supreme Court of Utah.

Jan. 24, 1969.

Strong & Hanni, L. L. Summerhays, Salt Lake City, for defendant and appellant.

Gayle Dean Hunt, Salt Lake City, for plaintiff and respondent.

Hanson & Garrett, Don J. Hanson, Salt Lake City, for defendant and respondent.

CROCKETT, Chief Justice:

Plaintiff Marsh brought suit to recover for his personal injuries resulting from the collision of two automobiles: defendant Irvine's in which plaintiff was riding; and defendant Neil's which ran into the rear of the Irvine car just after it had entered U.S. Highway 201 from the Kennecott Mill Road near Magna. Upon a jury trial, verdicts were rendered of no cause of action as to Neil and holding Irvine liable.

Irvine, the losing defendant, appeals assigning errors in a familiar pattern: that the evidence will not support a finding that he was negligent; that it shows so clearly that the trial court should have ruled as a matter of law that the fault was that of the other driver Neil; and that the trial court compounded those errors by other related ones in improper instructions to the jury and rulings on evidence.

Plaintiff Marsh and defendant Irvine are fellow employees at the Kennecott Copper Company Mill in Magna. Marsh pays Irvine 75 cents per day for a ride to and from work so the protection of the guest passenger statute does not apply and Irvine would be liable for ordinary negligence. ¹ After getting off work at about 4:30 p.m. on November 9, 1964, they drove northward along the Mill Road to the stop sign at the entrance to Highway 201. It is a four-lane arterial highway, two east and two west. Incidentally, at that point they picked up two other passengers. Defendant Irvine states that he looked for cars coming from the west and thought he had about 500 feet clearance of oncoming traffic when he entered the highway. He proceeded in a northeasterly arc across the outside lane and into the inside lane of traffic, and thus into the path of the Neil automobile which was coming in that lane from the west and which struck him in the rear.

In support of his argument that the fault was upon the other driver Neil, and not himself, Irvine postulates that it would take him 3.3 seconds to travel from the stop sign to the inside lane where he had attained a speed of about 15 miles an hour, and that in accelerating to about 35 miles per hour in about 180 feet to the point of impact it would have taken him about 5 seconds more. From this he argues that at 60 m.p.h., 88 feet per second, Neil would have had to be 'some six or seven hundred feet west of the intersection when Irvine first started out from the stop sign' and thus had sufficient time in which to slow down and avoid collision with the Irvine car.

The difficulty with Irvine's argument is one which is not uncommon in such situations: it is based upon estimates as to time, speeds and distances, and therefore upon hypotheses that are not necessarily as firm as counsel like to assume for the purpose of calculations to produce a desired result.

As opposed to the evidence relied upon by Irvine there is another side of the picture. At this time of day people were getting off work and the traffic was heavy; there was obviously some hazard in entering the arterial highway. This is pointed up by the fact that as Irvine was hesitating at the stop sign, one of the 'backseat drivers,' a Mr. Beck, said, 'It is clear, let's go,' urging Irvine to go ahead, which the latter complied with.

There are also other aspects of the evidence which can be considered as bearing against Irvine's contention as to where Neil was when Irvine entered the highway. When Neil first saw the Irvine car pull over in front of him, he applied his brakes, found it impaired control of his car, released them for a distance, then reapplied them, which slowed him down to about 30 m.p.h. at the time of striking the Irvine car, which according to the estimate of Officer Hayward was 140, rather than 180 feet east of the Mill Road. These facts would make it quite uncertain as to where Neil was when Irvine pulled into the highway. And the capstone of the opposing evidence is the statement of Neil that he was only about 150 feet west of the Mill Road when Irvine pulled into the highway and across the outside lane and in front of him, and that in spite of Neil's effort in applying his brakes, he was unable to avoid the collision.

We agree that the jury should not be allowed such unbridled license as to base its verdict upon something which would be a physical impossibility. ² But in view of...