Nikoleropoulos v. Ramsey

• Decision Date: 28 March 1923
• Docket Number: 3896
• Citation: 61 Utah 465,214 P. 304
• Court: Utah Supreme Court
• Parties: NIKOLEROPOULOS v. RAMSEY

214 P. 304

61 Utah 465

NIKOLEROPOULOS v. RAMSEY

No. 3896

Supreme Court of Utah

March 28, 1923

Appeal from District Court, Third District, Salt Lake County; M. L Ritchie, Judge.

Action by Peter Nikoleropoulos against R. H. Ramsey, Judgment for defendant, and plaintiff appeals.

REVERSED and remanded for new trial.

E. A Rogers, of Salt Lake City, for appellant.

Bagley Fabian, Clendenin & Judd, of Salt Lake City, for respondent.

THURMAN, J. WEBER, C. J., and GIDEON, FRICK, and CHERRY, JJ., concur.

OPINION

THURMAN, J.

On the 21st day of March, 1920, plaintiff, while walking north on what is known as State street in Salt Lake City, was struck by defendant's automobile, running in the same direction. Appellant claims to have been seriously injured, and that the injury was caused by defendant's negligence. He brought this action to recover damages for the injury. Defendant, answering the complaint, denied liability and charged the plaintiff with contributory negligence. The jury to whom the case was tried found for defendant, no cause of action. Plaintiff appeals, and seeks to reverse the judgment, relying principally on alleged erroneous instructions, refusals to instruct as requested, and insufficiency of the evidence to sustain the verdict.

There is little or no conflict in the evidence concerning the material questions to be determined.

State street is a public highway running north and south through Salt Lake county. At the point where the collision occurred and thence on to Salt Lake City, a distance of 6 or 7 miles, a double-track street railroad is laid in the center of the street. The street on each side of the railroad tracks is paved to a width of 20 feet, while the intervening space occupied by the railroad is 16 feet wide. There was no sidewalk on the side where the injury occurred. The plaintiff claims however, that he was walking on the dirt road about 2 feet east of the pavement on the east side of the street, while the defendant contends that the plaintiff was walking on the pavement, within 1 1/2 or 2 feet of its eastern edge. Except as to these conflicting contentions, and the claim of plaintiff that he was seriously injured, there is no substantial conflict in the evidence. In stating the evidence upon which the case must be determined, we shall confine ourselves exclusively to the testimony of the defendant, which is corroborated in every substantial particular by his wife and another lady, who were riding in the automobile at the time of the collision.

The defendant was driving from Springville to Salt Lake City. He had been driving from the time he started at an average speed of about 15 miles an hour to a point a short distance south of where the accident occurred. At this point he reduced his speed on account of the traffic becoming more congested, and at the time of the collision he was traveling about 12 miles an hour, within 1 1/2 or two feet of the eastern edge of the pavement so as to leave room on his left for other vehicles to pass. It was about 8 o'clock p. m. The night was stormy, with some rain, which tended to obscure his vision. The curtains of his machine were drawn and the car closed. There was considerable traffic in both directions. The evidence does not disclose that at the moment of the accident there was any particular vehicle, or vehicles, attempting to pass on his left. The light, however, emanating from numerous vehicles operating in both directions, cast upon the wet pavement, tended further to obscure his vision. While his own vehicle, under normal conditions, would light the street ahead of him, so that he could see obstructions in his path for a distance of 75 feet, yet under the conditions existing at the time of the accident he could see for a distance of only 25 feet, and at times only 6 feet. He was within 6 feet of plaintiff when he first saw him. He immediately applied the brakes, but was unable to stop his car in time to avoid the collision. It does not appear why he did not turn to the left, or attempt to do so. This, however, is not controlling in the instant case. The right side of his car fender struck the plaintiff. He gave no warning before the collision. In this connection we quote from the transcript of defendant's testimony the following pertinent evidence elicited on cross-examination:

"Q. Now, as a matter of fact, in this particular case, the reason you ran into this man was because you couldn't see? A. I hit him, because I didn't see him in time to stop; in other words, I couldn't stop within that distance. Q. You knew, when you were back some distance, that you would not be able to see an object farther than 6 feet in front of you, when the reflections were wrong and you were bothered by the lights of other automobiles? A. There were times when other machines passed that I couldn't see. Q. Despite that you were driving on? A. Yes, sir. Q. When you did drive on, you ran into this man because you couldn't see him? A. That is it, because I didn't see him in time. Q. Now, do you say that you didn't see him because the reflection was bad, or because you weren't looking? A. Because the reflection was bad. Q. Then you were driving when you couldn't see in front of you a distance further than 6 feet? A. At times. Q. At this particular time? A. At that particular minute or second. Q. At that particular time you were driving your car when you knew you couldn't see objects further than 6 feet ahead of you? A. Yes, sir. Q. Knowing that you couldn't stop your car in 6 feet? A. Yes, sir. Q. You didn't sound your horn? A. No, sir. Q. You didn't see this man until you were right up on him? A. No, sir. Q. There was 50 feet of roadway to the left of that man, was there not? A. I don't know how wide that road is. Q. Well, you know there are two strips of the pavement, and they are about 20 feet, aren't they approximately? A. Yes, sir; I would imagine. Q. There are two tracks? A. Yes, sir."

The specific grounds of negligence, charged in the complaint and relied on by plaintiff, are as follows:

"(a) In driving his said automobile at a speed greater than was reasonable and safe at said time, and at a rate of speed that was dangerous to life, limb, and property, to wit, at the rate of 30 miles per hour.

"(b) In not having, at said time and place, the said automobile under immediate control.

"(c) In not giving any warning whatever to the plaintiff upon approaching the plaintiff.

"(d) In running upon and against the said plaintiff when there was ample room upon said roadway for him to have passed the said plaintiff without striking the plaintiff."

At the conclusion of the evidence plaintiff's attorney, among other requests, requested the following instruction to the jury:

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