Watters v. Querry, No. 16897

CourtSupreme Court of Utah
Writing for the CourtHALL; STEWART and HOWE, JJ., and TUCKETT; CROCKETT
Citation626 P.2d 455
PartiesLisa WATTERS, Plaintiff and Appellant, v. Clayton N. QUERRY, Jean C. Querry, Charles L. Querry, Elizabeth Hemingway, andDavid E. Hemingway, Defendants and Respondents.
Docket NumberNo. 16897
Decision Date17 February 1981

Page 455

626 P.2d 455
Lisa WATTERS, Plaintiff and Appellant,
v.
Clayton N. QUERRY, Jean C. Querry, Charles L. Querry,
Elizabeth Hemingway, andDavid E. Hemingway,
Defendants and Respondents.
No. 16897.
Supreme Court of Utah.
Feb. 17, 1981.

Page 457

Samuel King, Salt Lake City, for plaintiff and appellant.

Don Hanson, Salt Lake City, for Querry.

Philip R. Fishler, Salt Lake City, Gary A. Frank, Murray, for Hemingway.

HALL, Justice:

Plaintiff appeals a second jury verdict and judgment 1 which dismissed her complaint against defendant Elizabeth Hemingway (hereinafter "defendant") for personal injuries resulting from an automobile accident.

On February 26, 1976, at approximately 10:00 p. m., defendant was driving her car westbound on Elgin Avenue in Salt Lake County. She turned right onto 7th East Street, a major thoroughfare. Then proceeding northbound, she moved from the extreme outside lane of traffic to the inside lane (that nearest the highway divider). At a break in the highway divider, defendant slowed and signaled a left turn. 2

Plaintiff was also northbound on 7th East Street, rapidly approaching defendant from behind. Upon seeing defendant's taillights, plaintiff successfully braked so as to avoid a collision. Defendant Clayton Querry (hereinafter "Querry") was driving a car immediately behind plaintiff's vehicle. Querry was admittedly inattentive and his car collided with plaintiff's car, just as defendant rounded the corner.

Querry thereafter settled with plaintiff. Plaintiff also sought recovery from defendant and initiated this action.

A trial of the matter to a jury resulted in a verdict on special interrogatories stating that, while defendant was negligent, her negligence was not a proximate cause of the collision nor of plaintiff's injury. On appeal, this Court vacated the judgment and remanded the cause for a new trial. 3 The basis of that opinion was two-fold: (1) that the court had improperly sustained an objection to certain testimony as hearsay; and (2) that the court improperly instructed the jury inasmuch as a jury question existed with regard to the foreseeability that an inattentive driver would be following defendant.

On remand, the matter was again tried to a jury on special interrogatories. The testimony previously excluded as hearsay was admitted, and an instruction on foreseeability was given. 4 The jury again found defendant free from liability, her negligence not being a proximate cause of the accident. From this verdict, plaintiff takes the instant appeal.

Plaintiff first asserts that defendant's conduct constituted a proximate cause of the accident as a matter of law. Ordinarily, the issue of proximate cause is a

Page 458

matter to be submitted to the jury for its determination. 5 This Court previously ruled that the issue of causation in the instant case should be determined by the jury:

It appears to us that there is a legitimate question as to whether a jury could reasonably find that defendant Hemingway, in making the alleged stop, should have foreseen that, in traffic such as there was on that highway, some momentarily inattentive driver following her would not be able to react and brake quick enough to avoid collision with her car or the car behind hers. 6

Once the jury has looked at the facts, weighed them, and made its decision based upon substantial, competent evidence, we are precluded from disturbing its findings. 7 The issue of proximate cause was properly submitted to the jury.

Plaintiff's second contention on appeal is that Querry's conduct was not of such character as to relieve defendant of responsibility for her negligence. This contention relates directly to the issue of proximate cause, discussed supra. In Jensen v. Mountain States Tel. and Tel. Co., 8 we held that the first actor cannot excuse himself from liability arising from his negligent acts merely because the later negligence of another concurs to cause injury, if the later act were a foreseeable event. Furthermore, we held that this "foreseeability" is an issue which must be resolved by the finder of fact.

We remanded the instant case to allow for a determination by the jury of that very issue. In finding that defendant's negligence was not a proximate cause of plaintiff's injuries, the jury necessarily concluded that the degree of Querry's inattentiveness in this case was not foreseeable. The facts presented at trial were adequate to support the proposition that the exercise of reasonable care on the part of Querry would have enabled him to avoid the accident. Due to Querry's negligence and inattentiveness, he failed to observe the situation as he should have; therefore, this later negligent act became the sole proximate cause of the collision.

This is consistent with the following reasoning of Anderson v. Parson Red-E-Mix Paving Co.: 9

... (I)f the previously created dangerous condition is such that the later actor, in the exercise of reasonable care, should have observed and avoided it, ... the later act of negligence is an independent intervening and therefore sole proximate cause.

The jury's finding on proximate cause is amply supported by the evidence.

Plaintiff's third point on appeal is that by rejecting her requested instructions 17 and 17A, the court failed to submit her theory of negligence to the jury. Said instructions recite plaintiff's allegations that defendant was negligent in making an illegal turn, in keeping an improper lookout,...

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18 practice notes
  • Biswell v. Duncan, No. 860124-CA
    • United States
    • Utah Court of Appeals
    • 18 Agosto 1987
    ...to the jury but it is not error when requested instructions are fully covered in the other instructions given. Watters v. Querry, 626 P.2d 455, 458-59 (Utah 1981). Instructions should be read in their entire context and given meaning in accordance with the ordinary and usual import of the l......
  • Harris v. Utah Transit Authority, No. 17042
    • United States
    • Supreme Court of Utah
    • 7 Octubre 1983
    ...v. Mountain States Telephone and Telegraph Co., supra; Watters v. Querry, Utah, 588 P.2d 702 (1978), appeal from proceedings after remand, 626 P.2d 455 (1981). See Skollingsberg v. Brookover, 26 Utah 2d 45, 484 P.2d 1177 (1971). Cf. Collier v. Frerichs, Utah, 626 P.2d 476 (1981). Accord Hen......
  • McCorvey v. Utah State Dept. of Transp., Nos. 910054
    • United States
    • Supreme Court of Utah
    • 10 Noviembre 1993
    ...700 P.2d 1068, 1070 (Utah 1985)). 9 Thompson v. LeGrand Johnson Constr. Co., 688 P.2d 489, 491 (Utah 1984) (citing Watters v. Querry, 626 P.2d 455, 457-58 (Utah 1981)). 10 Mitchell v. Pearson Enter., 697 P.2d 240, 246 (Utah 1985); Hall v. Blackham, 18 Utah 2d 164, 169, 417 P.2d 664, 667 (19......
  • Time Commercial Financing Corp. v. Davis, No. 17483
    • United States
    • Utah Supreme Court
    • 8 Octubre 1982
    ...presented to it. This Court upholds the findings of a jury where there is competent evidence to sustain them. Watters v. Querry, Utah, 626 P.2d 455 (1981); Durfey v. Board of Ed. of Wayne County School Dist., Utah, 604 P.2d 480 (1979); Maltby v. Cox Const. Co. Inc., Utah, 598 P.2d 336 (1979......
  • Request a trial to view additional results
18 cases
  • Biswell v. Duncan, No. 860124-CA
    • United States
    • Utah Court of Appeals
    • 18 Agosto 1987
    ...to the jury but it is not error when requested instructions are fully covered in the other instructions given. Watters v. Querry, 626 P.2d 455, 458-59 (Utah 1981). Instructions should be read in their entire context and given meaning in accordance with the ordinary and usual import of the l......
  • Harris v. Utah Transit Authority, No. 17042
    • United States
    • Supreme Court of Utah
    • 7 Octubre 1983
    ...v. Mountain States Telephone and Telegraph Co., supra; Watters v. Querry, Utah, 588 P.2d 702 (1978), appeal from proceedings after remand, 626 P.2d 455 (1981). See Skollingsberg v. Brookover, 26 Utah 2d 45, 484 P.2d 1177 (1971). Cf. Collier v. Frerichs, Utah, 626 P.2d 476 (1981). Accord Hen......
  • McCorvey v. Utah State Dept. of Transp., Nos. 910054
    • United States
    • Supreme Court of Utah
    • 10 Noviembre 1993
    ...700 P.2d 1068, 1070 (Utah 1985)). 9 Thompson v. LeGrand Johnson Constr. Co., 688 P.2d 489, 491 (Utah 1984) (citing Watters v. Querry, 626 P.2d 455, 457-58 (Utah 1981)). 10 Mitchell v. Pearson Enter., 697 P.2d 240, 246 (Utah 1985); Hall v. Blackham, 18 Utah 2d 164, 169, 417 P.2d 664, 667 (19......
  • Time Commercial Financing Corp. v. Davis, No. 17483
    • United States
    • Utah Supreme Court
    • 8 Octubre 1982
    ...presented to it. This Court upholds the findings of a jury where there is competent evidence to sustain them. Watters v. Querry, Utah, 626 P.2d 455 (1981); Durfey v. Board of Ed. of Wayne County School Dist., Utah, 604 P.2d 480 (1979); Maltby v. Cox Const. Co. Inc., Utah, 598 P.2d 336 (1979......
  • Request a trial to view additional results

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