West v. Standard Fuel Co
| Decision Date | 31 December 1932 |
| Docket Number | 5197 |
| Citation | 17 P.2d 292,81 Utah 300 |
| Court | Utah Supreme Court |
| Parties | WEST v. STANDARD FUEL CO |
Appeal from District Court, Third District, Salt Lake County; David W. Moffat, Judge.
Action by David A. West against the Standard Fuel Company. From a judgment for plaintiff, defendant appeals.
REVERSED AND REMANDED, with directions.
Ralph T. Stewart, of Salt Lake City, for appellant.
D. M Draper, of Salt Lake City, for respondent.
Defendant prosecutes this appeal from a judgment rendered against it on account of damages to plaintiff's automobile. The cause was tried to the court sitting without a jury. Defendant attacks the judgment appealed from upon two grounds, viz (1) Failure of the trial court to find upon one of the material issues raised by the pleadings and evidence; and (2) failure of the trial court to find as a matter of law, that plaintiff was guilty of contributory negligence which proximately contributed to the complained of injury. The negligence charged in the complaint was that the defendant on January 11, 1930, at about the hour of 6:30 p.m. left its truck without lights or signals standing on the traveled portion of Fourth South street at a point a short distance east of the intersection of Fourth South street and Eighth East street in Salt Lake City, Utah. As an affirmative defense to the action, defendant, in its answer, alleged that plaintiff was guilty of contributory negligence in that he at the time complained of, failed to have his automobile under proper control, failed to keep a proper lookout ahead, and failed to have his automobile equipped with proper lights. The trial court found in favor of the plaintiff on all of the issues excepting that he failed to make any finding upon the question of whether or not plaintiff's automobile was equipped with proper lights. The evidence, without conflict, establishes these facts: Late on the afternoon of January 11, 1930, one of the servants of defendant was driving one of its trucks loaded with coal east on Fourth South street. Something went wrong with the mechanism of the truck. The driver of the truck left it standing without lights on the traveled portion of the street while he went to get an automobile mechanic to repair it. While defendant's truck was thus standing on the street, plaintiff attempted to drive his automobile around the truck, but in so doing plaintiff's automobile skidded into the truck. It was stipulated by the parties to this action that as a result of the collision plaintiff's automobile was damaged in the sum of $ 182.50. The accident occurred at about 6:30 p.m.
Plaintiff's version of how the accident happened as shown by his testimony is as follows: That at the time of the accident defendant's truck was standing three or four feet east of the sidewalk which runs north and south on the east side of Eighth East street and about twenty feet north of the curb that runs east and west along the south side of Fourth South street; that the snow had been scraped off the traveled portion of Fourth South street and piled along the sides of the street next to the curb; that it had been snowing on the day of the accident; that there was a light coat of snow on the traveled portion of the street; that at the time of the accident it was dark, smoky, and foggy so that it was difficult to see anything; that plaintiff was traveling east on Fourth South street at about twenty miles an hour; that as he approached the intersection of Fourth South and Eighth East streets he slowed down to about fifteen miles per hour; that as he was about to cross the intersection an automobile was coming west on Fourth South street and another automobile was going north on Eighth East street; that as he was driving through the intersection he was watching the automobile which was going north along Eighth East street and was also looking out for pedestrians that might cross the street; that he passed just behind the automobile which was going north along Eighth East street; that just as he was increasing his speed, he, for the first time, suddenly saw defendant's truck directly in front of him; that he was probably between twenty-five and fifty feet from the truck before he saw it; that when he saw the truck he did not apply the brakes on his automobile because he feared it would skid; that he thought he could drive around the truck, but in attempting to do so his automobile skidded about two feet and the front door of his automobile struck the corner of the truck thus causing the complained of injury.
Plaintiff further testified that at the time in question the lights of his automobile were on; that they were in good condition; that they were thrown along the ground; that they had a good focus on them; that they gave the range required by statute; that they were tested in the fall of 1929. In some particulars plaintiff was corroborated by other witnesses who testified in his behalf. The testimony of defendant's witnesses in a number of particulars was in sharp conflict with the testimony of plaintiff and his witnesses, but it would serve no useful purpose to here recite such testimony. The only evidence in the record as to the direction in which plaintiff was looking at the time in question is that as he was crossing the intersection of Fourth South and Eighth East streets he was looking for cars and pedestrians who might be passing along Eighth East street and that as he passed behind the automobile which was going north on Eighth East street he suddenly saw defendant's truck.
Defendant contends that upon this evidence it was entitled to a finding by the trial court upon its pleaded contributory negligence of the plaintiff in failing to have his automobile equipped with proper lights. In support of such contention the case of Hall v. Sabey, 58 Utah 343, 198 P. 1110 1111, is cited. It is the well-settled law in this jurisdiction that it is the duty of the trial court to find upon all of the material issues raised by the pleadings, and that it is prejudicial error for the trial court to fail to find upon issues raised by the pleadings and the evidence. Other cases in which this court has so decided are: Mitchell v. Jensen, 29 Utah 346, 81 P. 165; Everett v. Jones, 32 Utah 489, 91 P. 360; ...
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