Redd v. Airway Motor Coach Lines, Inc.

• Decision Date: 17 May 1943
• Docket Number: 6472
• Citation: Redd v. Airway Motor Coach Lines, Inc., 104 Utah 9, 137 P.2d 374 (Utah 1943)
• Court: Utah Supreme Court
• Parties: REDD v. AIRWAY MOTOR COACH LINES, Inc., et al

137 P.2d 374

104 Utah 9

REDD v. AIRWAY MOTOR COACH LINES, Inc., et al

No. 6472

Supreme Court of Utah

May 17, 1943

Rehearing denied July 23, 1943.

Appeal from District Court, Fourth District, Utah County; John L Sevy, Jr., Judge.

Action by J. M. Redd against Airway Motor Coach Lines, Incorporated and another, for alleged wrongful death of plaintiff's son caused by negligence of defendants in the operation of a bus. From a judgment for defendants entered on verdict of the jury, plaintiff appeals.

Affirmed.

D. N. Straup, Willard Hanson, and Stewart M. Hanson, all of Salt Lake City, for appellant.

Harley W. Gustin, Robert A. Burns, and Alton C. Melville, all of Salt Lake City, for respondents.

McDONOUGH, Justice. WOLFE, C. J., and LARSON, MOFFAT, and WADE, JJ., concur.

OPINION

McDONOUGH, Justice.

Plaintiff sued defendant corporation and Emeron E. Wall as driver of a motor bus, for alleged wrongful death of plaintiff's son, Harold Stuart Redd. Plaintiff claimed death was caused by negligence of defendants in the operation of said bus. The jury returned a verdict in favor of defendants, "no cause of action."

On this appeal, plaintiff assigns the following errors: (1) Insufficiency of the evidence to sustain a verdict for defendants; (2) errors in instructions and in refusal of the trial court to instruct the jury in accordance with plaintiff's requests; and (3) alleged misconduct of the jury prejudicial to plaintiff. To determine whether the verdict is contrary to the evidence, we shall first consider the evidence produced by plaintiff and his witnesses.

On June 6, 1939, plaintiff resided on the south side of Center street in Provo. On the west of the house there is a driveway 12 feet in width extending to the street. Center street has a center lawn park strip 21 feet in width. The paved area on the south side of this strip is about 20 feet wide from curb to curb, and it is used only for eastbound traffic. The north paved strip for westbound traffic is about the same width. The curb which separates the pavement from the lawn park strip in the center of the street is about 6 inches high. Extending over the curb on the south side of the street connecting with the driveway to the Redd home is a cement culvert 14 feet 3 inches in length. From a point 1 foot west of the center of the culvert there is an expansion strip which extends across the pavement. The cement pavement slabs are about 30 feet long and they are separated by expansion strips. The public sidewalk adjoins onto the south curbing of Center street.

Plaintiff's son, Harold Stuart Redd, a little over 12 years of age, borrowed a bicycle from a neighbor boy on June 6, 1939, and took it over to his father's home. About 5 P. M. on that day, the passenger bus of defendant corporation, operated by defendant Wall, was making its regular trip east to the Utah State Hospital. As the bus on its east-bound trip reached a point about 100 feet west of the Redd driveway, Harold rode the bicycle north on the driveway toward the street. As he reached the sidewalk, the bus which then had not reached the driveway quickly swerved toward the northeast so that the tires on the left side of the bus scraped along the park curbing for about 9 feet when the left front wheel went over onto the lawn. About 31 feet farther to the east, at a point which is about 3 feet 4 inches west of a line extended from the center of the Redd driveway over to the park curbing, the right front wheel of the bus went over the curb onto the lawn. The lawn was wet at the time and the bus made rather deep tracks which made it easy to trace the course of the bus in a northeasterly direction across the lawn.

Several witnesses saw Harold turn toward the east after crossing the sidewalk at about the middle of the culvert. The bus passed between them and Harold as it came over the lawn so they did not see him fall from the bicycle. One witness saw him crouched on his hands and knees, then fall on his back to the pavement, his head being about a foot south of the park curb, said point being about 28 feet east of the center line of the Redd driveway and a little more than 31 feet east of the point at which the left front wheel of the bus came over onto the lawn.

No one saw the bus strike the bicycle or the boy or saw the boy run into the bus. The plaintiff testified that there was a dent on the rear mudguard of the bicycle which shows a glancing blow from the left; that the dent is at a point which corresponds with the height of the front bumper of the bus. Cross-examination disclosed the fact that the bumper is slightly curved, whereas the dent in the mudguard is a sharp dent. The theory of plaintiff is that the bus struck the bicycle at an angle on the rear mudguard, throwing both the bicycle and the boy forward more than 30 feet. While the left handlebar of the bicycle was bent out of line and the steering post was turned, the frame was not sprung and the wheels do not appear to have been injured. The first witnesses who appeared on the scene stated that part of the bicycle was lying on the right leg of the boy. Owen Heninger, owner of the bicycle, testified that previous to the accident there were some dents, but that the rear mudguard was not bent as close to the tire as he found it after Harold's death.

There was variation in the testimony of plaintiff's witnesses as to the speed of the bus and as to whether its horn was sounded. One witness said she estimated the speed at 35 to 40 miles per hour, while other witnesses for plaintiff testified the bus was going rather slowly or at a moderate rate of speed. The photographs taken the following day support the testimony that the bus did not travel on the pavement east of a point 3 feet 4 inches west of the center line of the driveway, and that the bus traveled to the north-east over the lawn.

A Dr. Clark testified that the boy suffered a depressed fracture to the frontal and parietal bones and also a basal skull fracture. On cross-examination he testified the basal skull fracture could have been caused by a blow on the forehead, and that a point of impact was probably on the forehead. Death occurred a few moments after the fractures were sustained. The boy had no other broken bones.

The day following the accident, plaintiff and his counsel took some measurements, and in doing so, not only observed a pool of blood where the boy was found lying on the pavement, but blood spots were also found about 11 feet west of the point where he was found, and one spot of blood was found 12 feet east of the point at which the right front wheel of the bus went over the curb onto the park lawn.

On denial of defendants' motion for nonsuit, defendants produced evidence in support of their contention that the bus struck neither the boy nor the bicycle. Defendant Wall testified that he saw Harold Reddon on a bicycle in the driveway about 60 feet south of the public sidewalk peddling to the north, when the bus was about 100 feet west of the driveway. He said he sounded the horn and applied the air and reduced the speed from 25 to 18 miles per hour; that Harold was peddling fast, with his head down, apparently giving no heed to the approach of the bus; and that when Harold cycled into the street he turned his bicycle to the east. He testified further that as Harold crossed the culvert over into the street the brakes of the bus were further applied and the bus was turned sharply to the northeast over the curb onto the park lawn to avoid colliding with the boy. Wall testified emphatically that he saw the bicycle strike the curb after the bus was entirely on the lawn, and that Harold went over the handlebars but did not fall onto the lawn. The point of impact of the bicycle with the curb was several feet west of where Harold fell on the pavement. Wall testified that the bicycle never came over onto the lawn at all, and that at the time the bicycle struck the curb of the park lawn the bus was at least 12 feet to the north and about 12 to 15 feet to the west of the place where Harold fell. His testimony was corroborated by a witness riding on the bus, and it was substantiated in part by another passenger.

Evidence was also offered to show that the bus was not equipped to operate faster than 25 miles per hour on the upgrade it was traveling at the time. When called on to explain why he did not stop immediately when he swerved the bus over the curb and onto the lawn, he testified that in going over the curb one of the diaphragms connected with the airbrakes was injured with the result that the breaking power thereby was considerably reduced. He also offered proof that the wheelbase of the bus is so short that if he had turned as quickly as he did at the particular angle, at a speed in excess of 25 miles per hour the bus would have overturned.

Under the evidence adduced as thus outlined, it is clear that the verdict is sustained by the evidence. The jury very well could have believed from the testimony and the photographs that the boy did not come in contact with the bus, for the reason that the bus traveled entirely on the park lawn after its right wheels reached a point 3 feet 4 inches west of the center line of the Redd driveway. The jury also could properly have believed that the bus driver turned onto the lawn in an effort to avoid hitting the boy and that he was not traveling at an excessive rate of speed. Furthermore, it cannot be said, as a matter of law, that the driver of the bus was guilty of negligence in acting as he did under the circumstances. This matter will be further considered presently in connection with the instructions of the court.

Appellant contends that the court erred in its charge to the jury and in denying certain requests for...