Nyman v. Cedar City
| Decision Date | 11 May 1961 |
| Docket Number | No. 9273,9273 |
| Citation | 361 P.2d 1114,12 Utah 2d 45 |
| Parties | d 45 Nedra NYMAN, Plaintiff and Respondent, v. CEDAR CITY, a municipal corporation, Defendant and Appellant. |
| Court | Utah Supreme Court |
Ray, Quinney & Nebeker, Grant C. Aadnesen, Salt Lake City, for appellant.
Rawlings, Wallace, Roberts & Black, Salt Lake City, for respondent.
The plaintiff sued for injuries suffered when an automobile in which she was a guest ran into obstructions in Center Street of defendant Cedar City. Upon a trial to the court she was awarded judgment of $11,000 general and $4,504.06 special damages.
Cedar City appeals, contending: that the evidence does not support a finding of its negligence; nor that its negligence proximately caused plaintiff's injuries; but that the negligence of the plaintiff's host driver was the sole proximate cause of the accident; and that plaintiff assumed the risk of dangers which caused the accident.
The trial court having found for the plaintiff, the review on appeal is in the light most favorable to her; and unless the evidence so viewed compels a finding as a matter of law in favor of the defendant on one or more of the issues above set forth, the judgment must be affirmed. 1
Center Street is a main-traveled, eastwest street in Cedar City. It is hardsurfaced, 25 feet in width. In connection with installing curb and gutter the city had left a bank of dirt about two feet high and four or five feet wide along the north edge of the surfacing in the 100 to 200 east block. In excavating, an old culvert and some blocks of concrete had been dug up and were left lying in this dirt. The culvert lay generally parallel to and in the row of dirt; about 40 feet from the east end thereof the culvert protruded about a foot beyond the dirt into the surfaced portion of the highway; about 15 feet further west a block of concrete similarly projected a foot or two beyond the south side of the dirt onto the highway, and about 20 feet further west still another did so. There were no barricades or warning signs or lights to warn traffic of the obstructions mentioned.
On May 18, 1958, the Junior Chamber of Commerce held its state convention in Cedar City. As a feature of the parade plaintiff's host driver, Ivan Walton, Jr., had brought to town a 1926 Model T Ford automobile. About midnight Walton and his wife and plaintiff and husband got in the car, men in front, ladies in rear, and started for a cafe up Cedar Canyon east of town. They soon discovered that the car was pretty feeble for that drive, so they turned around and came back. The evidence is that in returning to the city Mr. Walton was driving at a moderate speed, and that as he came upon the bank of dirt, as found by the trial court, 'it struck the south edge of the windrow near its easterly end, then skirted the edge of the windrow and the right front wheel, or more probably, the front axle struck the end of the culvert * * * continued onward along the edge * * * of the windrow and struck the second concrete block * * * with such force as to cause the three passengers to be thrown from the vehicle.'
The plaintiff landed on her face and shoulder on the hard surface, causing severe abrasions and extensive injuries, including a fracture of the skull, concussion of the brain, an injury to her left eye which will result in some permanent impairment of vision; broke her left arm in such a way as to leave a 35 per cent permanent disability thereof; and lost her sense of smell. She was 32 years of age and had a life expectancy of 36 years.
The trial judge, with commendable judicial zeal, prepared a memorandum decision in which he set forth a clear and complete determination of the facts as he viewed them, together with a lucid and accurate exposition of the principles of law applicable thereto. He made separate findings on each of the city's contentions: that the headlights and brakes of the ancient automobile were not up to standard; that it was not licensed for use upon the highways; and that the parties, including the driver, had been drinking. However, he found expressly that none of these factors proximately caused the accident; and that the plaintiff was not guilty of any negligence which contributed as a proximate cause thereto. He did find that Mr. Walton was negligent but held that it was only a concurring proximate cause of the accident, and that the 'accident would not have happened but for the concurrent negligence of the defendant city * * *.' He also correctly ruled that the negligence of the host driver was not imputable to the plaintiff as guest passenger, 2 and that notwithstanding his negligence she could recover from another tort feasor whose negligence concurred to cause her injury. 3
It has long been accepted in this jurisdiction that a city is required to exercise reasonable care to keep its streets in safe condition, and that it may be held liable for injuries proximately resulting from its failure to do so. 4 In Section 10-7-77, U.C.A.1953, the legislature has set forth the procedure for the presentation of claims against the city, 'for damages or injury, alleged, to have been caused by the defective, unsafe, dangerous or obstructed condition of any street * * *'; and has further provided therein that no action shall be maintained unless it appears that the claim was so presented and that it was not audited and paid within 90 days. This statute seems plainly to manifest recognition of the right to maintain such an action if the conditions recited in that statute are fulfilled.
It is to be expected that in the management of the city's streets excavations such as the instant one for installing curb and gutter are sometimes required, and that now and then it is necessary to leave obstructions such as this dirt in the street temporarily. It is the usual practice to place some type of barricade and warning signs; and for the nighttime, some type of light, or at least reflectorized signs, to warn traffic of danger. The failure of the city to protect this row of dirt in any manner, and particularly, when the culvert and cement blocks were protruding from it on the street side, provided a basis upon which the trial court was justified in finding it negligent. 5
This brings us to a consideration of the question whether the finding that the city's negligence was a proximate cause of the accident can be sustained. It urges the proposition that even if the court be justified in finding it negligent for leaving the unguarded pile of dirt...
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Roberts v. State, 83-170
...contributory negligence, ... proximate cause is a question of fact for the finder of fact to determine."); Nyman v. Cedar City, 12 Utah 2d 45, 49-50, 361 P.2d 1114, 1117 (1961) ("When the evidence is such that there is doubt about whether one of two causes is a proximate cause of an injury ......
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