Martin v. Stevens

• Decision Date: 01 May 1952
• Docket Number: No. 7731,7731
• Citation: 121 Utah 484,243 P.2d 747
• Parties: MARTIN, v. STEVENS.
• Court: Utah Supreme Court

Page 747

243 P.2d 747

121 Utah 484

MARTIN, v. STEVENS.

No. 7731.

Supreme Court of Utah.

May 1, 1952.

McCullough, Boyce & McCullough, Salt Lake City, for appellant.

Ray R. Christensen, Salt Lake City, for respondent.

CROCKETT, Justice.

As Lynn W. Martin was driving south along 18th East through its intersection with Stratford Avenue, the defendant coming along Stratford Avenue from the east, crashed into the middle of the left side of his car causing personal injury to plaintiff and damaging his automobile. At the trial, after plaintiff had presented all of his evidence, defendant moved for a dismissal upon several grounds, among which were:

'(4) The plaintiff's evidence * * * shows the plaintiff to have been guilty of contributory negligence which was a substantial proximate cause of the accident.'

upon which ground the motion was granted.

Under the new Rules of Civil Procedure 41(b), unless the court otherwise specifies, such a dismissal is with prejudice and is a final judgment. The plaintiff assigns the ruling as error.

The sole question presented by plaintiff's appeal is whether he is prevented from recovering because he was guilty of negligence which proximately contributed to cause his own injury.

In appraising the dismissal which was granted against the plaintiff, he is entitled to have us review all of the evidence, together with every logical inference which may fairly be drawn therefrom in the light most favorable to him.

Plaintiff left his home is Salt Lake City at about 7:00 a. m. on September 25, 1950, and drove south along 18th East approaching its intersection with Stratford Avenue, upon which defendant was approaching the intersection from the east. The weather and visibility were good and the roads dry. No traffic signals or signs control traffic there. The northeast corner of the intersection, across which these travellers would see each other, is blind in that there is a high fence along the west property line, and there are vines, bushes and trees which obscure the view. The width of asphalt surface of 18th East is 26 feet; of Stratford Avenue 28 feet.

Plaintiff said he was travelling 10 to 15 miles per hour, slowing down as he approached the intersection. He first looked to the west, then to the east from whence defendant would have been approaching. At this instant he was approximately 20 feet from the intersection and he could see 150 to 200 feet eastward but saw no car coming from that direction. He apparently assumed from this observation that there was no car coming from the east close enough to constitute any hazard to him, turned his attention back to the intersection and the west and proceeded. He first saw defendant's car at a point about 60 feet east of the intersection when he heard screeching as defendant's brakes were applied. Plaintiff applied his own brakes and was stopped, or virtually so, a little to the south of the center of the intersection when he was struck. The left front fender and wheel of the defendant's car hit the front post of the left front door of plaintiff's car. The crash knocked plaintiff unconscious and his automobile must have remained in gear as it traveled a total distance of 156 feet, first going on south and westerly and then veering more to the west, crossing two front yards and a hedge before finally coming to rest. Defendant's automobile came to rest about 18 feet south of the point of impact. His skid marks extended east from that point a distance of 57 to 65 feet, and indicated that as he hit plaintiff his car was about its width (lacked 22") south of the center line of Stratford Avenue.

There was testimony by Officer Kenneth C. Farnsworth that, if the defendant's automobile had come to a complete stop after skidding the 57 feet, his speed would have been 32 miles, or more, per hour. Any momentum left after the skid would represent additional speed. It must have exceeded the 32 miles per hour considerably because of the force with which the plaintiff's car was struck (it was damaged so badly that it could only be sold for salvage) and also because the 57 feet represented only the actual skid after the reaction time had passed and the brake was applied. It being a residential area, the admitted speed limit is 25 miles per hour.

From the forgoing facts concerning speed, and considering the defendant's duty to keep a proper lookout, to keep his car under safe control and on his right side of the street, and the matter of yielding the right of way hereinafter discussed, it is unquestioned that the jury could have found him negligent.

We then proceed to the inquiry: Can it be said as a matter of law that the plaintiff was guilty of contributory negligence which proximately contributed to cause his own injury?

The question of contributory negligence is usually for the jury and the court should be reluctant to take consideration of this question of fact from it. Nielson v. Mauchley, Utah, 202 P.2d 547; Toomer's Estate v. Union Pacific Railroad Co., Utah, 239 P.2d 163. The expressions in those cases are in accord with this uniformly accepted doctrine. The right to trial by jury should be safeguarded. Before the issue of contributory negligence may be taken from the jury, the defendant's burden of proving both (a) that plaintiff was guilty of contributory negligence, and (b) that such negligence proximately contributed to cause his own injury, must be met, and established with such certainty that reasonable minds could not find to the contrary; conversely, if there is any reasonable basis, either because of lack of evidence, or from the evidence and the fair inferences arising therefrom, taken in the light most favorable to plaintiff, upon which reasonable minds may conclude that they are not convinced by a preponderance of the evidence either (a) that plaintiff was guilty of contributory negligence or (b) that such negligence proximately contributed to cause the injury, the plaintiff is entitled to have the question submitted to a jury.

The defendant makes some far-reaching contentions respecting the law of this state governing traffic at intersections. The doctrine he contends for, reduced to its bare substance is this: That an intersection collision will not occur unless both of the drivers are negligent and fail to see each other, or having seen one another, attempt to win a race to the intersection. He maintains virtually that no matter how negligent the defendant may be it is still the plaintiff's duty to avoid the collision. He states in his brief: 'And if the defendant were travelling 50 miles per hour, that would have been fair notice to the plaintiff that the defendant had no intention of yielding the right of way.' and further: 'The rule that both drivers involved in an intersection collision are guilty of negligence as a matter of law is a healthy rule and conforms to the realities of modern day driving conditions.'

These contentions of the defendant are fallacious. The law has never been so declared by this court. Concurring in the case of Bullock v. Luke, 98 Utah 501, 98 P.2d 350, 354, Mr. Chief Justice Wolfe said: '* * * we must be careful not to stretch contributory negligence to the point where we make it incumbent upon one not only to drive carefully himself, but to drive so carefully as always to be prepared for some sudden burst of negligence of another and be able to avoid it. * * *' The substance of that thought has been expressed numerous times in the intersection cases relied upon by the defendant. The rule he contends for would throw a protective cloak over wrongdoers and penalize careful drivers by requiring them to anticipate and avoid the negligence of others. If a driver has to drive his car under the assumption that every one else is apt to be negligent, the next step would be for him to conclude that he better get off the streets entirely or some one is likely to hit him, and abandon the streets to those who were just willing to take chances. If, under circumstances such as present in this case, where the plaintiff's right of way is so clear that no reasonable person could have any doubt about it, he could not assume that he would be afforded his right of way, the only way drivers could safely proceed at an intersection would be to resort to: 'You first, my dear Gaston,--no, after you, my dear Alphonse,' procedure or get out and hold a conference before either could safely proceed.

Such a state of uncertainty and confusion would not be consistent with the purpose of the law, which is to so regulate traffic as to permit the most efficient and expeditious use of the streets consistent with safety. It is true indeed that safety is the first and most important consideration and that careful driving is to be encouraged to the utmost possible degree. However, it does not follow that it is necessary to so interpret the law that, wherever there is a collision at an intersection, both drivers are guilty of negligence, nor that in a case such as this the plaintiff should be precluded from recovery because by hindsight it may appear that by using some extraordinary degree of caution and circumspection, he could have observed that the defendant was being negligent and thus have afforded the defendant the use of the intersection and avoided the collision.

It was for the very purpose of avoiding uncertainty and confusion at intersections, and in order to make the movement of traffic both practical and safe, that rules have been established so that drivers will know which has the right of way. An excellent text statement of the rights and duties of drivers at intersections is contained in 2 Blashfield Cyclopedia of Automobile Law and Practice, Perm.Ed., Sec. 991 to 994 inc., pp. 206 et seq. The first of these rules is that the vehicle which enters the crossing first has the right of way over a second one coming from another direction, unless under the standard of due care, he should not proceed because to...