Van Cleave v. Lynch

• Decision Date: 18 February 1946
• Docket Number: 6821
• Citation: 109 Utah 149,166 P.2d 244
• Court: Utah Supreme Court
• Parties: VAN CLEAVE v. LYNCH

166 P.2d 244

109 Utah 149

VAN CLEAVE v. LYNCH

No. 6821

Supreme Court of Utah

February 18, 1946

Appeal from District Court, Second District, Weber County; Charles G. Cowley, Judge.

Action by Robert L. Van Cleave against Mrs. Robert L. Lynch sometimes known as Annie P. Lynch, to recover for the wrongful death of plaintiff's son, who was struck by an automobile driven by defendant. Judgment for plaintiff, and defendant appeals.

Affirmed.

Howell Stine & Olmstead, of Ogden, for appellant.

M Blaine Peterson and Lewis J. Wallace, both of Ogden, for respondent.

Turner, Justice. Larson, C. J., and McDonough, Wade, and Wolfe, JJ., concur.

OPINION

Turner, Justice.

Respondent recovered a verdict of $ 10,000 general damages and $ 345 special damages against defendant, for alleged wrongful death of respondent's son on July 27, 1942. There is no dispute as to the fact the child was killed as a result of an impact with the automobile driven by defendant. Appellant's appeal is predicated on the following principal grounds: (1) That the trial court erred in not directing a verdict in favor of the defendant; (2) that the court misdirected the jury; and (3) that excessive damages were awarded.

The contention that the court should have directed a verdict on the ground that the facts required a finding that the defendant was unable to avoid the collision with the child, is untenable. Counsel argue that the proof shows that the child, Frank Van Cleave, ran into the side of the car driven by Mrs. Lynch; but an examination of such evidence in connection with all other evidence shows that such evidence is not undisputed. Furthermore, the evidence of the defendant, standing alone, would not necessarily require a finding that the child ran into the side of the Lynch car. Nor is the evidence of negligence insufficient to warrant the court in submitting the case to the jury.

While there is a sharp conflict in the evidence in certain particulars, some evidence is undisputed. It is admitted that the child died of injuries sustained by an impact with a car operated by Annie P. Lynch. She was traveling on Monroe Boulevard in Ogden. This street runs north and south. It is a through street. There is a blinker signal overhead at the intersection of 23rd street and also stop signs, which require traffic on 23rd street to come to a full stop. The Van Cleaves resided two houses east of Monroe, at 806 23rd street. Four houses farther to the east at 836, on the north side of the street, defendant and her husband resided at the time of the fatal accident.

At 4:56 p. m. on that day a fire siren was heard in the neighborhood. A fire occurred just two blocks away. Deon, a brother of decedent, 9 years of age, with a companion, ran westerly across Monroe toward the place of the fire, but they turned around and started back upon learning that the fire was out before they could get there. Deon testified, as they neared Monroe, going east and walking on the north sidewalk of 23rd street, that he saw his brother Frank go west toward Monroe, then stop and look in both directions, and then start across Monroe. Deon said that he saw a car going north on Monroe and in entering the intersection the driver swerved toward the east and made an arm signal for a right turn by extending the arm upward, getting close to a truck which was stopped on the east side of the intersection and then proceed north again. His brother Frank disappeared from sight, and Deon hurried to the corner, and then saw his little brother in the street. He ran to the house and informed his mother.

A neighbor, who lived directly across the street from the Van Cleave home, was out on her front porch. She testified that she saw Deon and his friend run west across Monroe at the time of the fire alarm. Some minutes later, she saw Frank come out of his home, run westerly along the walk toward Monroe, then stop at the curb, then take one or two steps into the street, when her view was suddenly obstructed by a large truck which went west and stopped at the northeast corner of the intersection. She observed the Lynch car go north at a speed of about 35 miles per hour, according to her estimate; saw the Lynch car veer easterly toward the truck, and she then heard a noise which she thought was a collision between the Lynch car and the truck she had seen stopped at the said intersection. When the truck moved westerly she saw Frank lying in the street a few feet from the curb on Monroe, about 35 to 40 feet north from the cross-walk. She immediately ran over to see the child.

Another neighbor testified that she had left the Jackson grocery and reached the southwest corner of Monroe and 23rd street, when she saw Deon and his companion going east near the northeast corner of the intersection. She saw Frank over on the northeast corner of the intersection, and heard the child yell, "Stay back," to the boys across the street. She then turned the corner and was going south, when she heard a crash. When she turned around she saw the Lynch car going north. Someone exclaimed, "A little boy got hurt." She rushed over to the scene and saw the child lying near the curb. A truck had driven from the east side of the street, behind the Lynch car, and a man got out. That was the first time she had seen this particular truck, and she did not know from which direction it came. She saw Mr. Lynch get out of the Lynch car and come back.

The plaintiff, father of the deceased child, testified that several days after the accident he had a conversation with the husband of the defendant in the presence of defendant, in which Mr. Lynch stated that he saw the child's head strike the radiator grill; that the body of the child struck the front end of the car so that the straps of metal which hold the license plate were knocked loose. The child's mother testified that Mrs. Lynch declared that she did not see the child until she hit him. The child was wearing overalls.

Defendant called a neighbor who lived on the east side of Monroe about 250 feet north of 23rd street. He testified that he was out on his lawn and happened to be looking south when he saw the Lynch car come north at a moderate speed some distance out from the curb and that he saw a little boy run toward Monroe along the sidewalk and then veer across the lawn and out into the street about 15 feet north of the cross-walk, and run into the side of the Lynch car. He then ran into his house and called the police. It was about 2 or 3 minutes between the time he went into the house and came out again. He did not go over to where the boy was lying in the street. There was a large crowd around when he came out. The boy was lying within 10 to 20 feet of where the Lynch car was parked. There are 8 or 10 trees between the sidewalk and the curb south of his home. He admitted that he did not have a clear unobstructed view.

The man who administered first aid to the boy was painting a house on the west side of Monroe about a half-block north of 23rd street when he heard a noise and turned around and saw a child curled up about 12 to 15 feet from the curb about 40 feet north of the northeast corner of the intersection. He did not see the collision, but he heard the noise. He did not see the car immediately, although later he saw it pointed over toward the curb some little distance to the north.

The police officer who investigated testified that he found the Lynch car about 200 feet north of the intersection when he arrived. He found a couple of small scratches on the right front fender directly in front. He observed no other dents or marks. No one was in the car at the time. He talked to Mrs. Lynch shortly after the accident and she told him that when she saw the boy he was "right square up in front of the car" and that "he darted out so quickly" that she did not have a chance to see him. He examined the street and found no tire nor skid marks.

The proprietor of the Jackson market testified that he was driving his truck east on 23rd and stopped at the southwest corner of the intersection until the cars going northward had passed. That when a gray car (later identified as the Lynch car) passed he drove easterly into the intersection; he then noticed something fall off the running board of the Lynch car. He observed that it was a child. He turned around and went north on Monroe; then took Mrs. Lynch home -- walked home with her. He noticed the child's body was a couple of car lengths to the south of the point where Mrs. Lynch had parked the car. He did not recall seeing any truck at the intersection on the east side. Three cars passed through the intersection before the Lynch car passed in front of him. He had been acquainted with defendant since childhood; visited socially with Mr. and Mrs. Lynch, and also looked after her following the accident because of her nervous condition. He did not notice any boy in the Lynch car. He looked northward over his shoulder when he reached the east pedestrian lane. He did not see the child run into the car, and he did not see the child come into contact with the car.

Defendant testified that she picked up her husband after work, and that their nephew, about 10 years of age, was with them. They were driving him home. She testified that she did not turn east on 23rd street to go to their home because she was taking her nephew home first; that she gave no hand signal at 23rd street, and that she was going 20 to 25 miles per hour. The nephew watched the speedometer. As she came to the intersection she saw Mr. Jackson's truck stopped at the southwest corner of the intersection. She did not see the Van Cleave boy at all. She felt no jar and heard no noise until she heard her husband scream. She stopped the car and Mr Jackson came over to...