Sine v. Salt Lake Transp. Co.

• Decision Date: 19 April 1944
• Docket Number: 6523
• Citation: 106 Utah 289,147 P.2d 875
• Court: Utah Supreme Court
• Parties: SINE v. SALT LAKE TRANSP. CO. et al

147 P.2d 875

106 Utah 289

SINE v. SALT LAKE TRANSP. CO. et al

No. 6523

Supreme Court of Utah

April 19, 1944

Appeal from District Court, Third District, Salt Lake County; M. J Bronson, Judge.

Personal injury action by Jemima N. Sime against Salt Lake Transportation Company and another. Judgment for defendants and plaintiff appeals.

Reversed and remanded for new trial.

W. D Beatie, of Salt Lake City, for appellant.

Ingebretsen, Ray, Rawlins & Christensen, of Salt Lake City, for respondents.

BAKER, District Judge. WOLFE, Chief Justice, LARSON, Justice, McDONOUGH, Justice, concurring. PRATT, J., on leave of absence. MOFFAT, J., participated in the hearing but died before publication of the opinion.

OPINION

BAKER, District Judge.

This action arose out of a collision between a taxicab of the defendant, Salt Lake Transportation Company, a corporation, and an automobile driven by one Charles W. Hall, which occurred on the 11th day of July, 1941, at the intersection of Third West Street and West 6th South Street in Salt Lake City. At the time of the collision the taxicab was being operated by the defendant Orville v. Butcher, who was an agent and servant of the defendant corporation and then and there acting within the scope and course of his employment. It is also undisputed that at the time of the accident the plaintiff was being transported by the defendants as a passenger for hire.

The taxicab so operated by said Butcher approached said intersection from the east; the automobile driven by said Hall was proceeding in a northerly direction along said 3rd West Street, and approached and entered said intersection from the south. The plaintiff by her amended complaint alleges that at the time of said collision she was an occupant of the rear seat of said taxicab, and that as a result of said collision she was thrown about the inside of said taxicab and thereby suffered certain injuries to her person for which she claims damages. The plaintiff further alleges that said collision and her resulting injuries were caused by the negligence of the defendant Butcher in the operation of said cab.

The defendants by their answer deny all allegations of negligence, and that the plaintiff suffered any damage by reason of any want of care on their part.

On the issues so formed the case came on for trial before the late Judge P. C. Evans of the Third District Court. Judge Evans heard the evidence and the matter was argued and submitted to him for decision, a jury having been waived. Shortly thereafter Judge Evans died without rendering a decision in the case. The case was then re-set and assigned to the Hon. M. J. Bronson, another judge of the same court, for trial. Thereupon the parties stipulated that the cause should be submitted to Judge Bronson upon the record made at the trial before Judge Evans, and upon arguments to be made by counsel for the parties, if Judge Bronson should so desire. The stipulation was confirmed by the court, and accordingly the court, after reading the transcript of the evidence, heard arguments by counsel for the parties. The court then took the matter under advisement, and thereafter made and filed its findings of fact and conclusions of law, upon which judgment of "no cause of action" for the defendants was duly entered on the 30th day of March, 1942. It is from that judgment that the plaintiff herein has appealed.

The plaintiff assigns as error those findings of the trial court which are to the effect that defendants were guilty of no negligence, and that any injuries suffered by appellant were caused solely and exclusively by the negligence of the aforementioned Charles W. Hall, driver of the other automobile involved in the collision. It is the contention of appellant that those findings of fact, together with the conclusions of law and judgment which were drawn therefrom are contrary to law, and are not sustained by, and are contrary to the weight of the evidence.

It appears from the record before us that Third West Street runs north and south, and that Sixth South Street runs east and west, and that the place where they intersect in Salt Lake City was the scene of the accident of which appellant complained. The paved portion of Third West Street, from curb to curb, north of Sixth South Street is 93 feet, and the paved portion of Third West Street, from curb to curb, south of Sixth South Street is 61 feet. The width of Sixth South Street, from curb to curb, is 61 feet. Two sets of standard-gauge railroad tracks run along the center of Third West Street in a north and south direction and traverse said intersection. It is about 20 feet from the east curb-line of Third West Street where it intersects the south curb-line of Sixth South Street to the easternmost rail of the railroad tracks. From a point on Sixth South Street 50 feet east of the east intersection line the view south on Third West Street was unobstructed for a distance of 200 feet.

On the day of the accident the taxicab operated by the defendant Butcher as agent and servant of the defendant Salt Lake Transportation Company was carrying the plaintiff as a passenger for hire in the rear seat of said cab and proceeding westerly on said Sixth South Street as it approaches the intersection of that street with said Third West Street. At the same time the automobile operated by said Charles W. Hall was proceeding northerly on said Third West Street and approaching said intersection from the south. At a point within the intersection the automobile driven by Hall ran into the taxicab, striking the taxicab at a point in the region of the left rear door and the front part of the left rear fender. The impact caused the injuries of which the plaintiff complains.

The specific acts of negligence on the part of the defendants alleged by the plaintiff in her amended complaint are that the defendant Butcher:

(a) Operated said cab along and upon Sixth South Street in a westerly direction and south of the center of said street;

(b) Operated said cab at an excessive rate of speed, to wit, in excess of 35 miles per hour;

(c) Failed to keep a careful or any lookout for persons and vehicles along and upon said highway; and

(d) Failed to keep said cab under control.

Respondent asserts that an examination of the record before us discloses either that there is no proof of the charges of negligence made by the plaintiff in her complaint, or that the proof with respect to such charges is in substantial conflict, which conflict was resolved by the trial court in favor of the defendants. Appellant contends, on the other hand, that it appears from the record that the defendants were negligent as a matter of law, and that such negligence proximately contributed to the injuries sustained by appellant.

This is a case at law. It therefore follows that this appeal is upon questions of law alone. That being true the function of this court is not to pass upon the weight of the evidence, nor to determine conflicts therein, but to examine it solely for the purposes of determining whether or not the judgment finds substantial support in the evidence. In so examining the evidence all reasonable presumptions are in favor of the trial court's findings and judgment, and the evidence must be considered in the light most favorable to them. If the findings and judgment are substantially supported by the evidence, then the court may not disturb them. When, however, the evidence is viewed in the light most favorable to the judgment of the trial court, the conclusion to be drawn therefrom is a matter of law, and the question which confronts this court is whether or not the court on the basis of such facts was correct in its conclusions of law. Accordingly the fundamental issue presented by this appeal is this: Was the defendant Orville W. Butcher guilty, as a matter of law, of negligence which proximately contributed to the injuries of which appellant complains?

To answer the foregoing question we have examined the evidence with respect to each of the specific allegations of negligence as set out above. With regard to allegations (a), (b) and (d), that defendant Butcher operated the taxicab on the wrong side of Sixth South Street, that he operated it at an excessive rate of speed, and without having it under control, we find the evidence in substantial conflict. Those conflicts were resolved by the trial court in favor of respondents, and we may not disturb its findings.

The evidence with regard to plaintiff's allegation (c)-- failure by defendant Butcher to keep a proper lookout-- presents a situation wherein the conflict is not so clear. True, the evidence is in conflict as to who entered the intersection first, and we must assume, since the trial court so found, that Butcher was the first to enter. In that connection it will be noted there was in effect at the time of the accident, Section 57-7-136, Utah Code Annotated 1943, which is in part as follows:

"(a) The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.

"(b) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right."

It follows that if within the purview of the foregoing statute the fact that Butcher entered the intersection first is determinative of the issues here involved, the judgment of the lower court should be affirmed. We have formerly held, however, notably in Bullock v. Luke, 98 Utah 501, 98 P.2d 350, that the rights of the possessor of the right of way under such a statute are only relative, and that one is not relieved of the duty of using due care simply...