Morgan v. Bingham Stage Lines Co.

• Decision Date: 13 August 1929
• Docket Number: 4768
• Citation: 283 P. 160,75 Utah 87
• Court: Utah Supreme Court
• Parties: MORGAN v. BINGHAM STAGE LINES CO. et al

283 P. 160

75 Utah 87

MORGAN v. BINGHAM STAGE LINES CO. et al

No. 4768

Supreme Court of Utah

August 13, 1929

Rehearing Denied December 13, 1929.

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Action by Ivy Morgan, as administratrix of the estate of Orson Morgan, deceased, against the Bingham Stage Lines Company and another. Judgment for plaintiff, and defendants appeal.

REVERSED AND REMANDED, with directions.

Henry D. Moyle, of Salt Lake City, for appellants.

Carlson & Carlson, of Salt Lake City, for respondent.

HARRIS District Judge. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and FOLLAND, JJ., concur. EPHRAIM HANSON, J., being disqualified, did not participate.

OPINION

HARRIS, District Judge.

Plaintiff brought this action against the defendants for the alleged negligent running down and killing of one Orson Morgan, deceased, on the public streets of Salt Lake City, by one of defendant's motor busses.

The complaint, so far as material here, alleges: That on the 11th day of May, 1927, when said Orson Morgan was about to board an east-bound street car on Second South street near the intersection of Third West street, Salt Lake City, Utah, defendants negligently, carelessly, and unlawfully ran a large automobile or stage, from the west, over Orson Morgan, so injuring him that he immediately died. That the negligence of the defendants consisted in (1) driving at an unreasonable rate of speed and not having said automobile under immediate control as required by law; (2) driving said automobile past a standing street car when said street car was stopped for the purpose of taking on said Orson Morgan and other passengers; (3) failure to blow their horn or give warning of their approach; (4) failure to keep a proper lookout for pedestrians lawfully on said street; (5) failing to stop when defendants could have stopped after seeing, or being in a position where they should have seen, said Orson Morgan on said highway about to board a street car on said highway.

For their answer, defendants, after making a general denial, further allege that the sole cause of the accident was that, while defendants were driving an automobile stage in a careful and cautious manner on said street, said Orson Morgan carelessly and negligently, and without due circumspection for his own safety, and while attempting to cross Second South street at a place other than a regular crossing thereof when a regular crossing thereof was within 300 feet therefrom, suffered injuries of which plaintiff now complains. As a separate defense, the defendants allege that at the time of the accident Orson Morgan negligently, etc., and without warning or first stopping, looking, or listening, ran from the curb on Second South street between cars parked upon said street into and upon the traveled portion of the said street directly in front of and in the course of and into the front of the automobile bus of defendants so being carefully driven by defendants on said street, and that the injuries received by Morgan were the result of such carelessness on his part, and not of any negligence on the part of the defendants. Substantially the same facts are then pleaded as contributory negligence on the part of the deceased.

A trial resulted in a verdict for the plaintiff for $ 12,500, and this appeal is from the judgment on the verdict.

Defendants assign as error the ruling of the court in denying their motion for a nonsuit made on the grounds that there was no evidence of any negligence on the part of the defendants which was the proximate cause of the injury of deceased, and that the evidence conclusively established that the cause of the injuries was the contributory negligence of the deceased.

On Second South street, immediately west of Third West street, there were three sets of railroad tracks crossing Second South street in a somewhat diagonal route from southeast to northwest. The west one of these tracks is a spur track to the Ford Motor Company plant, and is 114 feet west of Third West street and 231 feet east of Rio Grande avenue, the next street west of Third West street. The accident took place a few feet south and west of the intersection of the west rail of this spur track and the south rail of the street car track, on the afternoon of May 11, 1928.

Appellant's counsel claim that all of the evidence shows that the defendant's bus was ahead of the street car before the street car stopped and when the accident took place, and that all of the evidence shows that the deceased at the time of the accident was crossing the street from the curb and stepped directly into or in front of the bus when it was too late to stop.

Counsel seem to be hopelessly apart on what the record shows as the evidence in the case, and, since the record is not long, we have undertaken to set out the substance of the evidence, at least as to matters in dispute.

Plaintiff produced as his first witness Jack Chido, who testified that he was driving an auto west on Second South street and was about 40 feet east of the accident at the time it happened; that he saw the accident; that he noticed deceased standing out by the street car track about 4 or 5 feet south of the street car track and about the same distance west of the spur track; saw him standing there 4 or 5 seconds, and "Morgan was standing out there as I told you before and the street car came to a stop. When I seen Mr. Morgan standing out there and the car had stopped then the collision took place." Witness said he did not see the bus until it came up and struck deceased; did not know how long Morgan was standing there, but he did not see Morgan walking out there.

Ed Wells, who was riding with Chido, testified similarly, except on cross-examination, with reference to the time of the accident, he testified: "Well, the street car was stopped or it was so close to stopping that I could not tell the difference from where I was."

Again as to whether the car had stopped before the accident, he testified: "That is a pretty hard thing to judge, I couldn't tell the difference; it was coming towards me."

Mr. Boyle, who was riding on the street car, testified: "The first I saw, I was sitting in this position and I heard a woman holler. The car was coming to a stop. The motorman had made his application of the air. The car was practically stopped and I heard this holler, and I turned right in this position and saw the body of the front part of the bus coming, as I thought, into the street car. At the same instant I looked toward the front of the car and saw the body of a man. It looked to me like he was crumpled over the front of the car, with a lunch bucket in the air. Q. At that time had the street car stopped? A. Yes sir; my recollection is it had stopped."

Eugene Johnson testified that he was standing on the south side of Second South street about the middle of the block; saw the bus come around the corner at Rio Grande avenue at a speed he judged at 25 to 30 miles per hour, and it picked up a little as it came up the street; that he saw Morgan come out of the soft drink parlor on Second South, but did not see him any more until after the accident; did not see the accident.

One of plaintiff's witnesses was permitted to testify, over defendant's objection, that the street cars always stopped before crossing the railroad tracks, and that they did take on and discharge passengers at that stop.

Defendant offered as a witness Lawrence Monson, who testified that he was walking east on Second South street about 60 feet west of the railroad tracks; that the street car and bus were almost parallel when they passed him; that the speed was about 15 miles per hour; that he did not see Morgan before the accident but heard the crash, and rushed over there, and Morgan's body was lying under the bus just back of the right front wheel and near the intersection of the street car and railroad track; and that there were cars parked at the south curb of Second South street along there.

Chas. Brozelle testified that he was standing in front of the soft drink parlor on Second South opposite the place of the accident; that he saw Morgan "standing on the curb, waiting for the car, and as soon as he saw the street car coming he walked out on the street between two cars and went for the street car, and that is the time he got hit."

Defendant L. W. Jones, driver of the bus, testified that he had been down to 559 West Second South to deliver a trunk and was returning east on Second South alongside of the street car. He said: "When I was down about to Rio Grande Ave. I was traveling 20 to 25 miles per hour and at the center of the block about 15 miles per hour, I was slowing down for the railroad crossing and traveling about 12 miles per hour when deceased stepped out from between two parked cars right onto my right fender. I did not see deceased until he was right on the fender. I immediately stopped my car and found deceased just back of the right front wheel. There were four cars parked at an angle along Second South and from the rear end of those cars to the front of my bus after I stopped was about 10 or 12 feet."

It will thus be seen that there was a conflict in the testimony in several material particulars, and, where there is such a conflict and there is any substantial evidence tending to prove the negligence of defendant was the proximate cause of the injuries, then the question is properly for the jury.

In Johnson v. Silver King M. Co., 54 Utah 34, 179 P. 61, 66, it is said:

"At most, the question of negligence may be said to be doubtful; and, where such is the case, it has become elementary in this jurisdiction, as well as in many others, that the question is for the jury."

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