Reid v. Owens

• Citation: 98 Utah 50,93 P.2d 680
• Decision Date: 31 August 1939
• Docket Number: 6035
• Court: Supreme Court of Utah
• Parties: REID et al. v. OWENS et al

93 P.2d 680

98 Utah 50

REID et al. v. OWENS et al

No. 6035

Supreme Court of Utah

August 31, 1939

Rehearing denied December 28, 1939.

Appeal from District Court, Third District, Salt Lake County; O. W McConkie, Judge.

Action by Reva May Reid and others against W. F. Owens and George Owens for the death of Clair G. Reid resulting when struck by an automobile driven by George Owens, wherein the Wasatch Gas Company and another filed cross-complaint. From an adverse judgment, defendants appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Gardner & Latimer, of Salt Lake City, for appellants.

Thomas & Thomas and Ingebretsen, Ray, Rawlins & Christenson, all of Salt Lake City, for respondents.

McDONOUGH Justice. MOFFAT, C. J., PRATT, J., and H. D. HAYES, District Judge, concur. LARSON, J., dissents. WOLFE, J., being disqualified, did not participate.

OPINION

McDONOUGH, Justice.

This case has been tried three times, and this is the second time it has been before this court on appeal. The earlier opinion is reported in 92 Utah 432, 69 P.2d 265. This action arose out of an automobile accident in September 1932, wherein the defendant, George Owens, drove a car which struck Clair G. Reid, the father of the plaintiffs, and caused his death. On the first trial a verdict was directed in favor of W. F. Owens, father of the defendant, George Owens, and a jury was unable to reach a verdict as to George Owens, the driver. In the second trial, against George Owens only, the jury brought in a verdict of no cause of action, and a motion for a new trial was granted. In the meantime the dismissal of defendant W. F. Owens was appealed to this court, and we held that certain admissions of knowledge of recklessness and speeding propensities of the son, and of insurance taken out to guard against their results, were sufficient to make a jury question on the joining of W. F. Owens as defendant. Accordingly the third trial was against both father and son, and the jury returned a verdict against them on which the district court gave judgment. Both defendants have appealed from that judgment.

Appellants rely chiefly on error of the trial court in four respects: (1) submitting the question of deceased's contributory negligence to the jury; (2) admitting testimony of negligence and the carrying of insurance to cover it; (3) refusing to instruct the jury to regard with suspicion testimony of admissions of liability made by the defendants, W. F. Owens; and (4) refusing to rule that this action was precluded by the claim and receipt of compensation from the Industrial Commission by the deceased's widow though she is not a plaintiff herein.

The question raised by the first assigned error is the most difficult. The trial court instructed the jury on the theory that the deceased was working on the highway and could therefore rely on vehicle drivers to keep a lookout for him, his duty to exercise care being less strict than that of one not so working. This is sound doctrine when the facts are appropriate, and the question here is whether the facts justify the application of the rule.

On September 13, 1932, the deceased and six other employees of the Wasatch Gas Company were engaged in making a gas connection at 1208 East 33rd South Street in Salt Lake County. This house is on the south side of the street and the gas main line is on the north side. Thirty-third South Street has a paved surface eighteen feet wide, under which it was necessary to tunnel in order to lay a pipe. Accordingly, trenches were dug north from the pavement to the gas main line and south from the pavement to the house connection. Just off the pavement, north and south, holes were dug to enable the workmen to tunnel and force a pipe under the pavement. At 5:30 p.m., which was after the usual quitting time, the work was almost completed except for filling in the trenches and holes. Clair Reid and one or two other workmen were in the north hole and trench, and one or two others were nearby. The foreman said, apparently to no one in particular: "Run across the street and see if the fire valve is closed at the house." Reid and another workman both started across. One question is whether, at that moment, Reid was one of the class of workmen on a highway who are not compelled to direct their entire attention to traffic because their work demands a portion of that attention.

Both appellants and respondents cite authorities for the proposition that one who is working in the street is held to a less strict watchfulness than a pedestrian crossing the street. Lozio v. Perrone, 111 N.J.L. 549, 168 A. 764; Rush v. Cody, 107 Vt. 326, 178 A. 891; Dube v. Keogh Storage Co., 236 Mass. 488, 128 N.E. 782; Berry v. Irwin, 220 Ky. 708, 295 S.W. 1020; Mecham v. Crump , 137 Cal.App. 200, 30 P.2d 568; State Compensation Insurance Fund v. Scamell, 73 Cal.App. 285, 238 P. 780; Chaney v. Moore, 101 W.Va. 621, 134 S.E. 204, 47 A.L.R. 800, and annotation at page 807. But this is a case where the workman was working at the side of the then traveled portion of the road and crossed the road in connection with his work but while crossing had nothing to do except get to the other side. He was free to direct his entire attention to crossing the street--just as free as any pedestrian who might have preoccupation but who is required by law to forego them while crossing a busy street.

A case very similar to the instant case is Andrus v. S. J. Boudreaux & Son, La. App. 158 So. 679. There the plaintiff was foreman of about twelve men engaged in roadwork, about half of them being on each side of the road, but not on the paved portion, as defendant's truck approached. The paymaster had just pulled up his car across the road from the plaintiff who proceeded to cross the road diagonally to the paymaster's car. The plaintiff testified he did not see defendant's truck, but the court noted a probable inference that he saw it from the fact that he had "walked unusually fast, rushed or run." But this was immaterial as the court found: "The on-coming truck was in full open view in the road and was bound to have been seen by the plaintiff had he looked down the road at the time of starting across." The court then held the plaintiff to the knowledge he would have had if he had looked and held: "It was his duty to look for his safety before starting across. He must be regarded as having seen the truck whether he looked or not"; and the court approved the holding of the lower court that plaintiff was guilty of contributory negligence as a matter of law. "He should not have thus voluntarily, heedlessly, and thoughtlessly left a safe place and exposed himself to an obvious danger by trying to cross the road under the circumstances which attended such a movement."

The rule that one working on the highway is not held to so high a degree of care as a pedestrian has been applied to workmen crossing a street as a part of their work. Ellis v. Whitmeyer, La. App., 183 So. 77; Riley v. Tsagarakis, 50 R.I. 62, 145 A. 12; Leoni v. McMillan, 287 Ill.App. 579, 5 N.E.2d 742. The circumstances may be such in a particular case that a workman crossing a street in the line of his work, though he be carrying nothing and doing nothing except crossing, would not be required to exercise the same degree of watchfulness as a pedestrian if barriers or signs have been placed or there is other evidence of work being prosecuted on or in the immediate vicinity of the street; but such a workman cannot be said to act as a reasonably prudent person under the circumstances if he is altogether indifferent to traffic hazards. What is due care depends on all the surrounding facts and circumstances. A workman actively laboring in the street must exercise due care. But that care must be determined from a different standpoint than the care to be exercised by a pedestrian on the same street. The former must devote some attention to the prosecution of his work; the latter is free of any duty which would interfere with keeping a vigilant lookout. A driver of a vehicle being warned by barriers, signs, or other evidences of the presence of workmen in the street must in the exercise of due care be cognizant of the fact that such workmen may not constantly attend to traffic, and his conduct should be in the light of such knowledge. He may not in case of injury to such a workman point to the latter's attention to his work as negligence on the latter's part. But a pedestrian devoting so much of his attention to other than the traffic as the workman devotes to his work may well be guilty of contributory negligence. A workman merely crossing a street should doubtless be required to be more watchful than one sweeping streets, shoveling dirt, repairing rails, or filling holes, whose duty not only compels him to be in the highway but also to devote a very large part of his attention to his work. Thus, in Ellis v. Whitmeyer, supra, where the workman merely crossed the bridge as ordered by his foreman he looked for traffic before proceeding and left ample margin for cars traveling as warned by danger signs. Indeed, the court observed, although applying the rule of highway workers, that the plaintiff used such care as would have been absence of contributory negligence in a pedestrian. The jury's award was upheld against a claim of contributory negligence as a matter of law.

And in Riley v. Tsagarakis, supra, the Rhode Island court said [50 R.I. 62, 145 A. 14]:

"We cannot say that there was no evidence that the deceased was in the exercise of due care."

The absence of evidence as to what the workman did at the time and just prior to the impact of a truck with his body left unimpaired the presumption of due care on his part. The court reversed a judgment entered on a...