Morrison v. Perry

Citation104 Utah 151,140 P.2d 772
Decision Date17 August 1943
Docket Number6345
CourtSupreme Court of Utah
PartiesMORRISON v. PERRY

[Copyrighted Material Omitted]

Appeal from District Court, Second District, Weber County; L. A Wade, Judge.

For former opinion, see 104 Utah , 122 P. 2d 191.

Judgment of lower court reversed and case remanded for new trial.

Thatcher & Young, of Ogden, for plaintiff.

Edwin B. Cannon and Joseph D. Hurd, both of Salt Lake City, for defendant.

LEVERICH District Judge. WOLFE, C. J., McDONOUGH, J., LARSON, Justice., concurring. MOFFAT, Justice, concurring in the result. WADE, J., having disqualified himself, did not participate.

OPINION On rehearing.

LEVERICH, District Judge.

On rehearing. The original opinion is reported in 122 P.2d 191. This action was brought by the personal representative of John K. Spiers, deceased, for the benefit of his heirs, to recover damages for his death. The parties will be designated as they appeared in the court below.

Plaintiff's complaint contains two causes of action: First, to recover damages sustained by the heirs by reason of the death of Spiers, and second, to recover damages for obligations incurred by deceased between the time of the accident and his death, such as hospital, nursing, and doctor bills, cost of towing his wrecked car and damage to the car. To the second cause of action the court sustained a general demurrer, and plaintiff cross-appeals. Issues were joined on the first cause of action and a trial by jury resulted in a verdict and judgment for plaintiff, from which defendant appeals.

The accident occurred near the hot springs northwest of Ogden City, Utah, at a point where the new highway connects with the old Ogden highway. The old highway is straight for some distance on each side of the point where the new highway connects with it. In approaching from the north point where the roads divide, the old road continues in a straight line in a southeasterly direction, while the new road takes off and goes in a southerly direction. The fork of the roads forms a V shape which is filled with gravel and is the shoulder of the two roads as they come together. The old highway is cement construction and the new is oiled gravel. Both roads have gravel shoulders on each side. Both highways lead to Ogden. The new road is referred to in the evidence as the main highway.

The defendant and his wife and daughter-in-law were approaching from the north while the truck driven by Mr. Spiers, the deceased, was approaching from the south on the main highway.

Defendant assigns 62 errors which may be grouped as follows: 1. Sufficiency of evidence as to defendant's negligence. 2. Contributory negligence of deceased as a matter of law. 3. Misconduct of counsel. 4. Admission and rejection of evidence. 5. Instructions. 6. Misconduct of jurors.

There were three eye-witnesses to the accident, the defendant, his wife and daughter-in-law. Mrs. Perry was in the front seat of the car next to the driver, while defendant's daughter-in-law sat in the rear seat behind the driver. These witnesses testified in substance that they were driving from their home in Deweyville, which is on the highway north of Ogden, to the Dee Hospital in Ogden. They approached the scene of the accident about 7:00 o'clock a. m.; it was light and the visibility good; defendant was proceeding at 35 to 40 miles per hour, and as his car approached the point where the main and old highways separate, they saw deceased's car approaching from the south on the main highway; they could not tell which side of the road he was on until they were within 225 feet of each other, at which time they noticed deceased was on the wrong side of the highway, on the inside of the curve, headed toward the right side of defendant's automobile; that defendant immediately swung his car to the left and applied his brakes; that at the same instant deceased swung his car to his right; defendant's car had almost come to a stop when the collision occurred near the edge of the hard surface of the old highway on defendant's left hand side and near the point of divergence of the highways; both cars were traveling at about the same rate of speed. These witnesses testified that they intended to take the new or main highway into Ogden and consequently intended to turn to their right at the point where the new highway enters the old.

The plaintiff produced witnesses who testified with respect to tire-marks, position of the cars as they come to rest and damage to the cars. From the evidence and the inferences deducible therefrom the jury might conclude that defendant was negligent and that deceased was free from contributory negligence.

Defendant in his brief says that that it is true that when a collision occurs on the defendant's wrong side of the road a presumption of negligence arises in the absence of evidence explaining why his car was on the wrong side of the road. Defendant then vigorously argues that the moment an explanation is offered the presumption ceases and does not longer exist. This is true, but the evidence upon which the presumption was based remains in the case and is to be considered by the jury, unless there is no conflict between such evidence and the explanatory evidence. See State v. Green, 78 Utah 580, 6 P.2d 177; Buckley v. Francis, 78 Utah 606, 6 P.2d 188; 9 Wigmore on Evidence (3rd Ed.) Sec. 2491. Defendant cites Saltas v. Affleck, 99 Utah 65, 102 P.2d 493, 495. In that case the court said:

"The evidence offered in rebuttal of the presumption of the agency of the driver from proof of ownership may be so uncontradicted and conclusive as to entitle the court to say as a matter of law that the presumption has been rebutted."

Here we do not believe such evidence to be conclusive.

Defendant contends there was not sufficient evidence to establish that deceased died as a result of the accident. We do not agree with this contention. There was evidence from which the jury could infer that the death resulted from the accident.

The trial court rejected an offer by defendant to prove a statement made by a son of deceased who arrived upon the scene shortly after the happening of the accident. The statement was to the effect that the witness "knew this was going to happen. We have tried to keep him off the truck. He is too old to be driving; he has no business driving a car." We need cite no authority. Such evidence is clearly inadmissible.

Over defendant's objection the court permitted a person, not an eyewitness, to give his opinion as to whether or not the brakes had been applied on defendant's car and also his opinion that the deceased's car when struck was picked up and came to rest a car-width from its original position. Another such witness was permitted to express and to demonstrate how the two cars came together. The opinions of both witnesses were based upon what they observed at the scene of the accident. The witnesses reproduced to the jury what they observed and the jury thus being equally as well informed as the witnesses should draw their own conclusions. Wigmore in speaking of this says at page 22, Section 1924 of Vol. 7, Wigmore on Evidence, 3rd Ed.:

"Such a witness' (lay witness) inferences are inadmissible when the jury can be put into a position of equal vantage for drawing them--in other words, when by the mere words and gestures of the witness the data he has observed can be so reproduced that the jurors have those data as fully and exactly as the witness had them at the time he formed his opinion."

The court erred in overruling the objections to such testimony.

The trial court instructed the jury on all of the alleged grounds of negligence set forth in plaintiff's complaint. One of the grounds was that defendant drove his car "without having it under immediate control, so that he could not stop it within the range of his vision." The court should not have submitted this issue to the jury for there was no evidence to support it and it is not applicable in this case.

In Instructions Nos. 15 and 21, the court told the jury that it was the duty of each driver to keep a constant lookout and that if either failed to do so he would be negligent. The law requires a motorist to maintain a reasonably careful lookout so as to avoid a collision with persons or objects on the highway. 5 Am. Jur. 599, Sec. 167; Cunnien v. Superior Iron Works Co., et al., 175 Wis. 172, 184 N.W. 767, 18 A. L. R. 667; Boccalero v. Wadleigh, 113 Cal.App. 376, 298 P. 526. What constitutes a reasonably careful lookout varies with the varying circumstances, and it is for the jury to determine whether or not a person maintained such a lookout under all of the facts as shown by the evidence. It may well be that under certain circumstances a "constant" lookout would be required and any lookout less than that would constitute a lack of due care. From the evidence in this case it cannot be said that reasonable minds would reach only one conclusion, that is, that the exercise of reasonable care under the circumstances would require a "constant" lookout. The court erred in instructing the jury that a "constant" lookout would be required.

In Instruction No. 2, the court propounds the following questions:

1. Did the defendant, at the time of or immediately preceding this accident, drive his automobile at a high, dangerous and unlawful rate of speed or at a rate of speed faster than was reasonable and prudent, having due regard to the surface and width of the highway and traffic thereon?

2. Did the defendant, at the time of or immediately preceding this accident, drive his car without having it under immediate control, so that he could not stop it within the range of his vision?

3. Did the defendant at the time of or immediately preceding this...

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