Smith v. Lenzi

• Decision Date: 13 July 1929
• Docket Number: 4711
• Court: Utah Supreme Court
• Parties: SMITH v. LENZI

279 P. 893

74 Utah 362

SMITH v. LENZI

No. 4711

Supreme Court of Utah

July 13, 1929

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Action by Elias A. Smith, Jr., against Don L. Lenzi. Judgment for plaintiff, and defendant appeals.

REVERSED AND REMANDED, with directions.

Henry D. Moyle and J. M. Christensen, both of Salt Lake City, for appellant.

Van Cott, Riter & Farnsworth, of Salt Lake City, for respondent.

BATES District Judge. CHERRY, C. J., and ELIAS HANSEN, J., concur. EPHRAHIM HANSON, J., being disqualified, did not participate. STRAUP, J., FOLLAND, J. dissenting.

OPINION

BATES, District Judge.

Plaintiff brought this action to recover damages for injuries to his person and to his automobile in an accident which happened at the intersection of Ashton avenue with Highland drive in Salt Lake City, Utah. It is the plaintiff's claim that the accident was caused by the failure of the defendant to observe an ordinance of Salt Lake City. On the other hand, the defendant contends that the accident was caused by the plaintiff failing to observe the right of way laws of the state of Utah.

The ordinance which plaintiff pleaded, proved, and relied on provides:

Section 1880XI. "The following streets in Salt Lake City are hereby designated as through highways and the chief of police is hereby directed to erect at the entrance thereto from intersecting streets signs notifying drivers of vehicles to come to a stop before entering or crossing such designated highways to wit: Highland Drive from Twenty-first South Street, south to City limits. * * *

Section 2. "It shall be unlawful for the driver of any vehicle to fail to stop such vehicle in obedience to a stop sign at the entrance of any through highway designated in Section 1 of this ordinance.

"The sign to be erected by the chief of police shall have upon it in large letters at least eight inches in height, the word 'Stop' and in smaller letters the words 'Thru Highway.'"

The right of way statute of this state, so far as material here (Comp. Laws Utah 1917, § 3978, as amended by chapter 47, Laws Utah 1923), reads:

"An operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left in an intersecting or connecting highway and shall give the right of way to an operator of a vehicle approaching him from the right at an intersecting or connecting highway.

"An operator shall reduce speed at crossings, connecting or intersecting of [all] highways. * * *"

Ashton avenue runs directly east and west, and intersects with Highland drive. Highland drive runs nearly north and south, bearing a little to the southeast. Just before the accident, defendant had driven south on the west side of Highland drive. He turned into Ashton avenue and out again into Highland drive intending to return north on Highland drive. The jury may or may not have found from the evidence that the defendant stopped at the stop sign placed on the south side of Ashton avenue, as required by the ordinance relied on, immediately before re-entering onto Highland drive. As the defendant entered Highland drive to return north, plaintiff approached the intersection from the north, driving about 25 miles per hour. Each of the parties saw the other just as defendant was entering the intersection; the plaintiff being at that time not less than 35 feet nor more than 70 feet away from the intersection. The defendant was then travelling east about 10 or 12 miles per hour, and could have stopped his car almost immediately. He hoped to get across, and stepped on the gas. Just before the front end of the car reached the car tracks near the center of Highland drive, plaintiff's car crashed into him, striking his car near the center.

A verdict was returned in favor of the plaintiff, from which the defendant appeals.

The court gave the following instruction to the jury:

"The plaintiff has introduced in this case an ordinance of Salt Lake City and marked Exhibit A. You are instructed that this ordinance designates Highland Drive from 21st South Street south to the City limits as a through highway for traffic moving north and south along said Highland Drive. By said ordinance it is made unlawful for any driver of a vehicle to fail to stop such vehicle in obedience to a stop sign at the entrance of said through highway before said driver enters upon said highway.

"You are instructed that it was the duty of the defendant, under said ordinance, when approaching said Highland Drive from Ashton Avenue on the night in question, before entering said Highland Drive, in the act of turning his car around, to stop said car and to look and listen, and to remain standing so long as the danger of a collision with passing or approaching automobiles on said Highland Drive was reasonably to be apprehended.

"That is to say that under the circumstances of this case, if you find by a preponderance of the evidence that the relative position of the plaintiff on said Highland Drive and the defendant, at the time the defendant says he stopped his car before entering said Highland drive from Ashton Avenue, and the speed at which the plaintiff was driving his automobile, were such that a collision was reasonably to be apprehended by a reasonable and ordinarily prudent person in the same or a similar situation as the defendant then was, if the defendant's car was moved forward, then, under such circumstances, it was the duty of the defendant to have remained standing and surrendered the right of way to the plaintiff."

The defendant, in his request No. 6, requested the court to give the following instruction, but the court refused to give it as requested or in substance, either in whole or in part:

"The Court instructs the jury that an operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left of an intersection or connecting highway and shall give the right of way to the operator of a vehicle approaching him from the right at an intersection or connecting highway. Therefore the Court instructs the jury that the law gives the driver of an automobile the right of way over the driver of an automobile approaching from the left at the intersection of public highways, and it therefore follows as a matter of law that upon the happening of a collision between two automobiles at such an intersection, the driver of the automobile on the left is necessarily guilty of negligence if the vehicles approached the crossing so nearly at the same time at such rates of speed, that if both proceeding, each without regard to the other a collision or interference between them is reasonably to be apprehended in such case the law gives to the person having the right of way, the right to continue his course and it is the duty of the other to yield that right of way."

We think the effect of the instruction as given was to submit the case to the jury upon the theory that the ordinance supersedes the statute; that is, to create a conflict between statute and ordinance where none exists. The only requirement of the ordinance is that a person stop at the stop sign immediately before entering the arterial or through highway. To so construe such a provision as to require the person entering a through highway from the right to remain standing and yield the right of way to persons approaching from the left on the arterial highway, if they are travelling at such a rate of speed that a collision is to be reasonably apprehended, and without imposing on such persons approaching from the left the statutory duties to slow down at intersections and to yield the right of way to persons approaching from the right, is to make the ordinance superior to the statute. It is the duty of courts to so construe statutes and ordinances as to give effect to every word used. Where two statutes can be so construed as to allow both to stand, that construction will be adopted. 1 Beach, Public Corporations, §§ 94, 95.

If the respondent stopped immediately before entering Highland drive, he complied with all the requirements of the ordinance. From that moment he was free to move without restriction, so far as the ordinance is concerned. As he approached Highland drive, after stopping, the statute gave him the right of way as against automobiles coming in the direction the respondent was travelling, and made it the duty of such persons approaching from the left to yield the right of way. But these rights and duties were only relative, and must be applied in the light of the conditions existing at the time. Aside from any statute or ordinance, it was the duty of both parties to use such caution as a reasonably prudent person would have done in entering the intersection. The speed that the cars were approaching, their distance from the point of intersection, the ability of the respective drivers to see, were all factors to be considered by the jury in determining whether appellant or respondent was entitled to the right of way. This construction gives force and effect to every word used in the ordinance, and does not in any manner conflict with the terms of the state statute.

Neither do we think that the effect of this construction is to emasculate the ordinance as claimed by respondent. The ordinance is not so far-reaching as he might wish, but it does have a very salutary effect in the regulation of traffic. When a person stops immediately before entering an arterial highway, he will necessarily enter the intersection more slowly. The rate that he is moving the speed of the arterial traffic, and its frequency, together with any other surrounding circumstances, must all be considered, together with the statute giving to the...