Shields v. Utah Light & Traction Co.

• Decision Date: 13 September 1940
• Docket Number: 6157
• Citation: 99 Utah 307,105 P.2d 347
• Parties: SHIELDS v. UTAH LIGHT & TRACTION CO
• Court: Utah Supreme Court

105 P.2d 347

99 Utah 307

SHIELDS v. UTAH LIGHT & TRACTION CO

No. 6157

Supreme Court of Utah

September 13, 1940

Appeal from District Court, Third District, Salt Lake County; Roger I. McDonough, Judge.

Action by Millie Shields against the Utah Light & Traction Company a corporation, to recover for death of plaintiff's son in a traffic accident. From a judgment for the plaintiff, the defendant appeals and plaintiff filed a cross-appeal.

Reversed, and new trial granted.

Hougaard Shields & Shields, of Salt Lake City, for appellant.

Bagley Judd, Ray & Nebeker, of Salt Lake City, for respondent.

JONES District Judge. MOFFAT, Chief Justice, PRATT, Justice, concurring in the result. LARSON, Justice, concurring. WOLFE, Justice, concurring in part, dissenting in part. McDONOUGH, J., being disqualified, did not participate.

OPINION

JONES, District Judge.

This is an appeal from a money judgment in a damage action resulting from a traffic accident which caused death.

The accident took place on one of the main thoroughfares of Salt Lake City. The hour was 6:30 a. m., the weather fair, the streets dry, and only the two vehicles which collided were in the vicinity. The deceased was traveling west on his motorcycle at about 30 or 35 miles per hour. The bus was moving eastward at approximately 15 miles per hour. Both vehicles approached a semaphore controlled intersection showing "go" at about the same moment. The collision took place over on the north half of the street while the bus was executing a left turn. Respondent's theory was that the bus was cutting the corner, did not have the right of way, no signal was given, it was going too fast, and was not being operated under proper control. Appellant disputed these contentions and alleged that the deceased was guilty of contributory negligence.

In instructing the jury the trial court included therein substantial copies of the pleadings of the parties. Instruction number one which set forth the allegations of the complaint occupies more than ten printed pages of the abstract. Sub-paragraphs four and five of this instruction (being the identical portions of the complaint) read as follows:

"(4) That at all times herein mentioned there were in full force and effect in Salt Lake City, Utah, certain ordinances, as follows, to wit:

"Sec. 1372. Vehicle Turning Left at Intersection. (c) The driver of a vehicle within an intersection intending to turn to the left shall yield to any vehicle approaching from the opposite direction, which is within the intersection, or so close thereto, as to constitute an immediate hazard, but said driver having so yielded and having given a signal when and as required by law, may make such left turn, and other vehicles approaching the intersection from said opposite direction shall yield to the driver making the left turn.

"Sec. 1374 (as amended May 3, 1935).

"(2) A signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.

"(5A) Left hand turn arm extended horizontally.

"Sec. 1370. The driver of a vehicle intending to make a left turn shall turn as near as possible to the right of the center of the street upon which he is proceeding where the same crosses the crosswalk and into the intersection, and to proceed so as to enter the street into which he is turning as nearly as possible to the right of the center of the same where it passes the crosswalk and enters the intersection.

"(5) That at all times mentioned in said complaint there was likewise in full force and effect Revised Statutes of Utah 1933, which contained the following sections, to wit:

"Right Of Way 57-7-31. At Intersections. * * *

"The driver of a vehicle within an intersection intending to turn to the left shall yield to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but such driver having so yielded and having given a signal when and as required by law may make such left turn, and other vehicles approaching the intersection from the opposite direction shall yield to the driver making the left turn.

"57-7-28. Turning at Intersections. * * *

"(2) Approach for a left turn shall be made in the lane for traffic to the right of and nearest to the center line of the highway, and left turn shall be made by passing to the right of such center line where it enters the intersection and upon leaving the intersection by passing to the right of the center line of the highway then entered.

"(3) Approach for a left turn from a two-way street into a one-way street shall be made in the lane for traffic to the right of and nearest to the center line of the highway and by passing to the right of such center line where it enters the intersection.

"57-7-29. Departure from Direct Line of Travel--Signals.

"The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, and, if any pedestrian may be affected by such movement, shall give a clearly audible signal by sounding the horn, and whenever the operation of any other vehicle may be affected by such movement shall give a signal as required in this section plainly visible to the driver of such other vehicle of the intention to make such movement.

"The signal herein required shall be given either by means of the hand and arm in the manner herein specified, or by an approved mechanical or electrical signal device, except that when a vehicle is so constructed or loaded as to prevent the hand and arm signal from being visible both to the front and rear the signal shall be given by a device of a type which has been approved by the state road commission.

"Whenever the signal is given by means of the hand and arm the driver shall indicate his intention to start, stop or turn by extending the hand and arm horizontally from and beyond the left side of the vehicle." (This section was amended by chap. 48, Session Laws 1935.)

Instruction number four is as follows:

"The foregoing instruction are not to be considered by the jury as a statement on the part of the court of the facts as proved in this case, but simply as a recital of what the plaintiff and defendant respectively claim to be the facts. Where it is stated that a party admits certain facts, you are to take such facts as established and proved, beyond this you are not to draw any conclusions as to the facts from a mere recital of the claims of the respective parties as hereinbefore set forth. It is solely and exclusively for the jury to find and determine the facts, and this they must do from the evidence, and having done so the jury must then apply to the facts the law as set out in these instructions."

The first paragraphs of instructions numbered ten, eleven and twelve are as follows (the last paragraphs of these instructions make specific applications of the propositions set forth in the first paragraphs):

"Number 10. You are instructed that it is provided by the laws of the State of Utah that the driver of a vehicle within an intersection intending to turn to the left shall yield to any vehicle approaching from the opposite direction which is within the intersection, or so close thereto as to constitute an immediate hazard.

"Number 11. You are instructed that it is provided by the laws of the State of Utah that no person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving an appropriate signal, and that a signal of the intention to turn to the left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning; that when a left hand turn is about to be made the signal shall be given by the hand and arm extended horizontally or by a signal lamp or signal device of a type approved by the state road commission, but when a vehicle is so constructed or loaded that a hand and arm signal would not be visible both to the front and rear of such vehicle then said signal must be given by such lamp or device.

"Number 12. You are instructed that it is provided by the laws of the State of Utah that the driver of a vehicle intending to turn at an intersection shall do as follows: Approach for a left turn shall be made in the lane of traffic to the right of and nearest to the center line of the highway, and the left turn shall be made by passing to the right of such center line where it enters the intersection, and on leaving the intersection by passing to the right of the center line of the highway then entered."

From the foregoing is will be observed that while the court cautioned the jury that "the foregoing instructions [referring to the pleadings] are not to be considered by the jury as a statement on the part of the court of the facts as proved in this case, but simply as a recital of what the plaintiff and defendant respectively claim to be the facts," yet in a following instruction the attention of the jury is specifically directed back to the only quoted copy of certain statutes and ordinances which appears in instruction one, in the following language:

"Elsewhere in these instructions certain laws relative to motor vehicle traffic are set forth" etc.

From this point of view the jury is told that the foregoing "merely set forth the claims of the parties as to the facts" but that this same instruction contains the law. Moreover, it must be borne in mind that the plaintiff by copying into her complaint certain sections of our statute (with the hope, no doubt, that the trial judge would include the same in the instructions relating to the...