White v. Pinney

• Decision Date: 23 December 1940
• Docket Number: 6218
• Citation: 108 P.2d 249,99 Utah 484
• Court: Utah Supreme Court
• Parties: WHITE v. PINNEY et al

108 P.2d 249

99 Utah 484

WHITE v. PINNEY et al

No. 6218

Supreme Court of Utah

December 23, 1940

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

Action by Kenneth White against Kenneth J. Pinney, doing business as the Pinney Beverage Company, and A. C. Neslen to recover damages for personal injuries. From a judgment for defendants, plaintiff appeals.

Affirmed.

Woodrow D. White, of Salt Lake City, for appellant.

Gardner & Latimer, of Salt Lake City, for respondents.

LARSON Justice. MOFFAT, C. J., and WOLFE and McDONOUGH, JJ.,concur PRATT, J., concurs in the result.

OPINION

LARSON, Justice.

Appeal from a judgment entered on a verdict "No cause of Action," in the District Court of Salt Lake County. Appellant, hereinafter called plaintiff, brought suit against respondents, hereinafter called defendants, for damages alleged to have been suffered when one wheel of a dolly or hand truck, owned by respondents, came off and struck appellant on the leg. Briefly the facts are: Defendant Pinney was a wholesaler in beer, and defendant Neslen was his truck driver making deliveries to the retailers. At the time of the accident a light truck operated by plaintiff was parked parallel to the curb and headed south on the west side of Highland Drive, a street running generally north and south in the Sugarhouse District of Salt Lake City. Plaintiff stood behind the truck, taking out flowers for delivery to a florist across the street. Defendant's stake body truck was traveling north on the east side of the street, loaded with beer, barrels, and cases. On a rack made for the purpose, under the left-hand side of the truck body, just back of the cab, was a hand truck or dolly used in unloading and moving the barrels of beer. As this truck passed plaintiff's truck one wheel of the dolly came off, crossed the street and struck plaintiff. This action followed. Tried to a jury a verdict "No cause of action" was returned.

The gist of all the assignments of error may be stated in three questions. First: Was plaintiff entitled to an instruction that defendants were negligent as a matter of law? Second: Did the court err in submitting to the jury the question of contributory negligence of the plaintiff? Third: Was Instruction No. 13 so erroneous as to require reversal of the judgment? We consider them in order.

First: Plaintiff contends that this case comes within the doctrine of res ipsa loquitur and plaintiff was therefore entitled to an instruction that defendants were guilty of negligence as a matter of law, and the only matters to be submitted to the jury were (a) the amount of plaintiff's damage, and (b) the contributory negligence of plaintiff if such question was properly in issue. On this point plaintiff's contention is untenable. This court is committed to the view that the doctrine of res ipsa loquitur does not give rise to a legal presumption of negligence but justifies the fact finder to infer negligence. Zoccolillo v. Oregon S. L. R. Co., 53 Utah 39, 177 P. 201, Williamson v. Salt Lake & O. Ry. Co., 52 Utah 84, 172 P. 680, L.R.A. 1918 F, 588; Angerman Co. v. Edgemon, 76 Utah 394, 290 P. 169, 79 A.L.R. 40. It holds that when a thing which causes injury is shown to be under the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care the happening of the accident is evidence sufficient to justify or sustain an inference that defendant did not exercise due and proper care. If results from the fact that the happening is such that it would not be likely to occur if some one were not negligent. The effect of the maxim is evidentiary. Where it applies, negligence, which is the ultimate fact to be established, may be inferred from a particular occurrence or accident. Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 57 L.Ed. 815, Ann. Cas. 1914D, 905; Angerman Co. v. Edgemon, supra. The doctrine therefore makes the question of negligence one of fact. It does not raise a presumption in plaintiff's favor but merely entitles the fact finder to infer and find negligence. In certain cases if no explanation of the accident is offered, the situation may forcibly impel a finding of negligence. An explanation may be so complete and thorough as to bar any reasonable inference of negligence. We will refer to this phase later in connection with the consideration of the third question.

Second: The court gave to the jury a number of instructions relative to contributory negligence. The instructions were probably correct statements of law but were not proper in this cause. There was no evidence of contributory negligence, no evidence from which the jury could find or infer such negligence. One purpose of instructions is to confine the deliberations of the jury to the issues raised by the evidence. They should not contain mere abstract propositions of law but should state the law applicable to the issues, facts and circumstances of the particular case on trial. Instructions on matters not within the issues or the evidence may lead the jury to believe that there is evidence in the record upon such issues and that such issue must be determined by them. Mehr v. Child, 90 Utah 348, 61 P.2d 624; Everts v. Worrell, 58 Utah 238, 197 P. 1043; Hillyard v. Bair, 47 Utah 561, 155 [99 Utah 489] P. 449; In re Calkins, 112 Cal. 296, 305, 44 P. 577. The court erred in giving such instructions.

Third: Does Instruction No. 13 contain error requiring a reversal? To understand this instruction it must be read in connection with Instruction No. 12 so we set them out in haec verba.

Instruction No. 12.

"You are instructed that the driver of a motor vehicle upon a public highway is not required to maintain such vehicle in perfect mechanical condition but only has the duty to keep such vehicle in that mechanical condition which would be maintained by a reasonable, prudent operator of a motor vehicle under the same or similar circumstances. If a mechanical defect exists in a motor vehicle being operated on a public highway which is not known to the operator of said vehicle and which could not be discovered by reasonable and prudent inspection of said vehicle, then such operator is not liable for any injuries to other persons resulting from such operation. In other words, a mechanical defect in a motor vehicle being so operated places no liability upon the operator thereof unless such defect is either known or should have been known from a reasonable, prudent inspection.

"Consequently, if you find under the facts and circumstances in this case that there was any mechanical defect existing in the truck being operated by the defendants at the time of this accident and such defect was not known to the defendants or could not have been discovered by a reasonable, prudent inspection of said vehicle, then the defendants are not liable and your verdict must be for the defendants, no cause of action." (Italics added.)

Instruction No. 13.

"On the other hand I instruct you that if you believe from a preponderance of all the evidence in the case that the wheel of the hand truck or 'dolly' was at the time and place alleged by plaintiffs, thrown, projected or catapulted in some manner against the plaintiff by reason of some defect in defendant's equipment and if the defendants have failed to satisfy your minds that they did not know of such defect in their equipment, responsible for the 'dolly' wheel being thus thrown, if you find it was so thrown; or have failed to satisfy your minds that the defect, if any, was of such a nature that it could not have been discovered by them by a reasonable, prudent inspection, then your verdict should be in favor of the plaintiff.

"That is to say, if you find the plaintiff was standing at the rear of his truck and that the truck was parked parallel to and near the west curb of Highland Drive and facing south, and the wheel in question was thrown from the truck of defendants and struck plaintiff as defendant's truck passed plaintiff on the east side of Highland Drive going north, and if you further find plaintiff was not negligent in being where he was and doing what he was doing, or such negligence of plaintiff, if any, did not proximately contribute to his injuries, if any, you must return a verdict in favor of plaintiff, unless you believe that the defect in defendants' equipment, if you find the wheel was thrown against plaintiff because of a defect in the equipment, was unknown to defendants, or could not have been discovered by them upon a reasonable prudent inspection, in which event, if you believe either of these two alternatives you should find in favor of the defendants and against the plaintiff, no cause of action." (Italics added.)

We have italicized in these instructions all phrases pertinent to the essence of this question. If now the italicized parts are read, thus eliminating the excess verbiage, the content purpose, and effect of the instructions seems clear. Instruction No. 12 is clear that liability for defects in a motor vehicle exists only (a) when the defect was known or (b) when it could have been discovered upon reasonable inspection. It further made clear that if there was a defect in defendants' equipment they could not escape liability unless the jury found not only that the defect was unknown but that it could not have been discovered by a reasonable prudent inspection. Instruction No. 13 further emphasizes this rule. The jury were told that if they believed that the wheel of the hand truck or "dolly" was thrown against the plaintiff by reason of some defect in defendants' equipment, then the defendants must satisfy the minds of the jury not only that they did not know...