Miller v. Utah Light & Traction Co.

• Decision Date: 03 January 1939
• Docket Number: 6023
• Citation: 96 Utah 369,86 P.2d 37
• Parties: MILLER v. UTAH LIGHT & TRACTION CO
• Court: Utah Supreme Court

86 P.2d 37

96 Utah 369

MILLER v. UTAH LIGHT & TRACTION CO

No. 6023

Supreme Court of Utah

January 3, 1939

Appeal from District Court, Third District, Salt Lake County; Roger I. McDonough, Judge.

Action by Julia G. Miller against the Utah Light & Traction Company for injuries sustained when struck by an electric street bus at street crossing. From an adverse judgement, plaintiff appeals.

AFFIRMED.

Gaylen S. Young, of Salt Lake City, for appellant.

Bagley Judd, Ray & Nebeker, of Salt Lake City, for respondent.

LARSON Justice. FOLLAND, C. J., and MOFFAT, JJ., concur. WOLFE Justice, dissenting.

OPINION

LARSON, Justice.

Plaintiff brought this action in the District Court of Salt Lake County, to recover a judgment for damages for personal injuries. At the close of the evidence the court directed verdict for defendant. Plaintiff assigns error. The action grows out of the following facts: Defendant maintains and operates a street railway system in Salt Lake City. It operates electric street cars, lories propelled by electric current from the wires but running on rubber tires instead of tracks, and gasoline motor buses. Extending north and south along Main Street are double street car tracks. East and west on Second South Street and intersecting Main Street are double tracks. Rounding each corner of the intersection on "three center curves" are tracks permitting street cars to turn from Main Street into Second South Street, or vice versa. Across Main Street in line with the sidewalks are pedestrian lanes twenty feet wide, marked by yellow lines painted across the street. Abutting and east of the tracks on Main Street, and just south of the pedestrian lane on the south side of Second South Street, is a safety zone for the protection of people getting on, off, or waiting for street cars. This safety zone is set off by a row of iron posts set in the pavement, 7 feet 2 inches from the east rail and extending south from the pedestrian lane about 7 feet. At the intersection was a traffic light semaphore and also a police officer directing traffic on the afternoon of the accident.

Plaintiff was walking west across Main Street in the pedestrian lane on the south side of Second South Street. As she reached a point in the pedestrian lane north of the safety zone, the traffic lights changed for the east and west traffic to stop and the north and south traffic to go. At the whistle indicating a change in the lights, plaintiff stopped, looked at the traffic lights, and then looked (southward) down the tracks, decided she was in a safe place and waited for the lights to change again so she could continue her journey. On the east Main Street track immediately south of the pedestrian lane, and along the safety zone above mentioned, stood defendant's motor bus awaiting the signal to start and take the turn east into Second South Street. After the lights changed the traffic officer standing at the center of the intersection blew his whistle, hand signaled the northbound traffic on Main Street to stop, moved over towards the southeast corner of the intersection, and signaled the motor bus to move on its course turning eastward into Second South Street. The operator moved the bus forward, following the tracks around the curve. The side of the bus on the overhang around the curve struck plaintiff, causing her to fall to the ground. She was picked up at a point north of the pedestrian lane and the rear wheel had run over her leg. She sustained a badly crushed leg, fractured ribs and other bruises.

She brings this action for damages alleging the following acts or grounds of negligence on the part of defendant: (1) Failing to yield the right-of-way to plaintiff; (2) Failing to sound a horn; (3) Failing to give plaintiff warning in any manner whatsoever; (4) Failing to keep a proper lookout; (5) Turning the bus suddenly and abruptly without warning so as to strike the plaintiff. We shall assume that each of these grounds is sufficiently pleaded to make an issue as a ground or basis for liability and consider in order whether they are sustained by the evidence and the law.

(1) Is there evidence to take the case to the jury on the ground that defendant failed to yield to plaintiff the right-of-way? Plaintiff's own testimony, as that of all other witnesses at the scene of the accident who testified, was to the effect that there was a traffic regulating semaphore at the intersection and that plaintiff, a part of the west bound traffic, heard the whistle and saw the signal lights change for east and west bound traffic to stop and "north and south bound traffic to go"; that pursuant thereto she stopped near the safety zone, and not in front of the bus, to let the north and south bound traffic go, waiting for the lights to change again and give her the right-of-way. It is also admitted that a traffic officer was at the intersection directing the movement of traffic and that the bus moved only upon and under his direction. As to whether the plaintiff, having started across the street while the lights were in her favor, could had she chosen so to do have continued onto the other side of the street, we need not determine. She did not do so. She does not contend that she did so or that she intended to do so. She states that she stopped and yielded the right-of-way "knowing that the traffic would go"; that she looked around, decided she was in a place of safety and waited for the lights to change again. According to all the evidence she was standing still, not needing, not demanding, not using and not claiming the right-of-way, and defendant was therefore under no liability to yield that which no one else wanted, demanded or needed. Guillory v. United Gas Pub. Service Co., La. App., 148 So. 274; Laws of Utah 1935, Chap. 48; 57-7-9 and 57-7-2, R. S. Utah 1933. There is no evidence at all of any negligence on this ground.

(2) Did plaintiff show any negligence in defendant's failure to sound a horn? It may be granted that the operator of the bus did not sound a horn or bell as it proceeded from its stopping point at the safety zone around the curve track into Second South Street. Sec. 57-7-29, Chap. 48, Laws of Utah 1935, as far as material here reads:

"No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement or after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement. * * *"

The law is well settled that the purpose of warning signals by trains or motor vehicles is to give notice of their presence or approach so another person will not be taken by surprise or caught napping. But where the other party has actual knowledge of the approach, presence, or movement of the train or vehicle, a warning signal is not necessary to impart that knowledge to him, and therefore the failure to give such warning does not ipso facto establish negligence because there is then lacking a causal connection between the failure and the accident.

In Ryan v. Trenkle, 203 Iowa 443, 212 N.W. 888, 890, the court said:

"A person who has knowledge of the presence of a train or auto which imparts to him the very thing that a signal was intended to impart cannot, under ordinary circumstances, predicate negligence on the failure to give a signal."

To the same effect are Haarstrich v. Oregon Short Line R. Co., 70 Utah 552, 262 P. 100; Schmidt v. Chicago & N. W. R. Co., 191 Wis. 184, 210 N.W. 370; McGlauflin v. Boston & M. R. R. Co., 230 Mass. 431, 119 N.E. 955, L.R.A. 1918E, 790; Nadasky v. Pub. Service R. Co., 97 N.J.L. 400, 117 A. 478.

Plaintiff testified that she stopped at the traffic lights' change; that she saw the bus standing by the safety zone ready to go; that she knew it would move forward with the change in lights and therefore she stopped so the traffic (including the bus) could move forward. When she knew it was there, knew it was going to move forward when it did, and stopped waiting for it to pass, she cannot well assert that she was taken unawares and the failure to sound the horn was the proximate cause of the injury. It may be argued that she assumed the bus would go straight north whereas its course would take it around the corner. It was a traction company bus, rails went around the corner as well as straight ahead, and there was no more cause for thinking it would go north than that it might turn east, especially since before the bus moved the traffic policeman after letting part of the traffic go north, right before her eyes, blew his whistle, stopped the automobile traffic and signalled the bus to make the turn around the corner.

In addition to the statute quoted above, Chap. 48, Laws of Utah 1935, 57-7-10, provides:

"The driver of a vehicle or operator of a street or interurban car or electric trolley coach intending to turn to the right or left at an intersection where traffic is controlled by traffic control signals or by a police officer shall proceed to make either turn with proper care to avoid accident, and only upon the 'Go' signal, except as otherwise provided in this section or unless otherwise directed by a police officer or by official traffic signs or special signals."

And R. S. Utah 1933, 57-7-2 and 57-7-9 read:

Section 57-7-2. "It is unlawful for any person to refuse or fail to comply with any lawful order, signal or direction of any traffic or police officer invested by law with authority to direct, control or regulate traffic."

Section 57-7-9. "It is unlawful for the driver of any vehicle or for the operator of any street or interurban car or...