*1 312 CAB,
GIBBS, Inc. et al. v. BLUE (249 213.) 23, P. 2d October 1952. 7710. Decided No.
31S S., Vehicles, Negligence proximate J. sec. See 51 C. Motor 522. Negligence, 351, questions Jur., 348, jury. Am. as secs. cause *2 seq. et Porter, Ivins, Fork, Heber Robert B. Grant American Jr., Jr., City, D. M. for and Salt Draper, appellants. Lake
Skeen, Worsley, Snow, Lake Thurman & H. Salt John City, for respondent.
HENRIOD, Justice. judgment on entered a directed a an This is appeal wrongful death a suit of verdict no cause action involving bicycle arising a collision out of intersection an trial, for a new with judgment is reversed and a cab. The on costs appeal plaintiffs. (1) court’s conclusion the trial
Plaintiffs contend negligent contributorily as a matter that deceased was using erroneous, that he since was law was defendant, safety rebutted care for was not due his (a) question (2) contribu- that under the facts the and negligence negligence, (b) if tory whether deceased’s and shown, collision, was a cause proximate properly jury. were matters for 24, 1948, m., at at the intersection
On November 6:40 a. (running west), 23rd east and St. and Jefferson (running south), and Avenue north residential streets Ogden, wet, Utah, wide, each 55 feet and while paved, cab, raining, dark respondent’s wip- it was windshield butterfly on operating, ers window of which was open fogging, the driver’s side to and whose windshield prevent being was steamed 23rd m. was driven east on at 20-25 up, only eyewitness, h. The driver and who admitted p. obscured, according testimony others, his vision was bicycle bright the front saw wheel of a in the cone of his headlights. anything He did not see the deceased else. southeasterly He swerved 40° the cab about and struck glancing bicycle three feet a blow about the front of the bicycle The at that of the center line of Jefferson. west angle, that the two at the time was almost same so pointed The each other. cab was parallel vehicles were almost reasonably within short distance near south- stopped alighted intersection, where corner of the the driver east deceased, and, bicycle, with the examined the the deceased volunteering right bicycle all his was that he was damaged deceased, way. a little. Each then went his The just 23rd, who had resided on Jefferson north of died carrying shortly on thereafter a bus which was him to bicycle. work. There no on was Thus there lamp was city statute1, violation ordinance and a state established some as a matter of There law.2 sign stop northwest and street on the north- *3 corner of east the intersection. during trial,
The court viewed scene on an ordi- nary day darkness, wetness, rain, when mist, factors etc. entering were absent. A person intersection from the no daylight headlights north doubt could see a car in night at for at a least block west on 23rd. mentioning attributing
Without the absence of the contributing cause, as lamp the court concluded that de- negligent ceased had contributorily as a matter of law he negligently look, having because or, failed looked, to degree failed exercise that of care for safety his own attributable to ordinary that of the prudent person. to what
The
evidence as
occurred at the time of and
immediately
accident was the
prior
fact that the cab
bicycle.
driver saw the front wheel of a
What the deceased
relegated
did
thereto is
prior
inescapably to the realm of
though
conjecture,
defendant,
counsel
in an ex-
—even
urge
brief,
facts,
cellent
certain physical
such as ex-
sign,
home,
istence
situs of
damaged
stop
deceased’s
27E2, Ogden City Ordinances;
1Sec.
57-7-154,
Title
U. C. A. 1943.
Cartwright,
516,
v.
119 Utah
2North
As
be
consequently
a matter
it cannot be said as
happened
negligence.
contributory
there was or
of law
certainty
can it
divined or concluded with
that de-
Nor
negatived
may have
contribu-
ceased failed to do that which
negligence.
record,
tory
We believe
facts shown
they are, and
such as
irrespective
presumption, properly
jury,
were for the
case where all reasonable
presenting
necessarily
in-
minds
need not determine an ultimate fact
exercising
with that of
character-
consistent
discretion
*4
of the
man.
istic
reasonable prudent
Assuming
showing
in one
violation of
aspect,
city ordinance,
negligence
defendant established some
law,
of deceased as a matter of
part
prob
lem remains as to whether absence of the
under
lamp
contributing
all the facts was or was not a
proximate
3Finlayson
Brady,
204,
v.
121 Utah
cause — bicycle, impact the time immediately prior away from the vision was pointed the lamp, therefore jury question. defendant —a proper negli- that matters principle are committed We gener- negligence cause contributory gence, proximate evidentiary are of facts jury questions,4 unless ally are require reasonable all character as to conclusive negli- fact of the ultimate to conclude minds contributory cause gence, proximate Recognizing the rule that trial not exist.5 does or does clearly unless will remain undisturbed court’s conclusions arbitrary, to this case we believe application mentioned, being only yardstick practical principles disagree cases, with us to in intersection compels applicable the trial court’s conclusion. cases, doctrine, in man and the
As
other
reasonable
to the function of court and
rules pertaining
negli-
negligence, contributory
to determination of
respect
gence
cause,
must be invoked in intersection
proximate
difficulty
more
cases—a
that creates
decision than
type
Difficulty
most.
arises
constant
applying
simple,
shifting
rules to
factual
The most
scenes.
difficult cases
encourages
similarity
are those where
of fact
citation of
slight
one
where
group
but
precedents,
difference
may
vigorous
equally
fact
invite
citation of antithetical
gainsaid
authority.
slight
It cannot be
that such
differences
decisions,
have led to
apparent conflicts
but
conflicts, wholly
have led to actual
irreconcilable
employ-
logic.
ment of
amount or manner of
The confusion
resulting
varying
applying
rules
factual situa-
reviewing
tions is
decisions,
apparent
countless split
frequently
disagree-
punctuated
earnest and emphatic
Perm,
Blashfield, Cyclopedia
4 10
Practice,
of Automobile Law and
ed.,
6594, 6600,
Secs.
6618.
5Id.,
6591, p. 503,
par;
Jur.,
Sec.
1st
Negligence;
348;
38 Am.
Sec.
Oregon
Ry. Co.,
Allan v.
267,
Short Line
60 Idaho
It is that there are cases that could be resolved grounds thing on there is such pure as a accident, negligent, although simple neither party —where rare; such cases be but we have been prone assume that negligent someone must have been in an intersection col- case, In the lision. instant it does not seem too unreason- able to the might writer believe that the well concluded, if it facts, had been permitted determine bicyclist that neither the nor the cabman other acted than ordinary, prudent persons would have done under like cir- cumstances and In conditions. such event the collision would involving have been an accident the principle of damnum absque injuria. think We inevitable conclusion anyone injured intersection, killed in an or the other event, principal necessity must guilty have been of some contributing carelessness Nothing to the mishap. *6 requires a conclusion. such by cited defendant6
in the cases rule, yet confusion down so broad laid No case has might that such make it appear already ones decided facts, are and we own rest on its case must rule. Each is the justify pre- case the facts to hold that constrained negli- questions defendant’s jury to the sentation both, contributory and whether gence, deceased’s injury. any cause was a proximate or neither either CROCKETT, J., concurs. (concurring).
WADE, Justice
injured
due care
used
that the person
The presumption
bearing
safety
no
on this case. Such pre-
has
for his
adversary
merely
the burden of
places
sumption
making
going
facie
evidence and
forward with the
prima
It
from the case as soon as
on that issue.
disappears
case
from which the fact trier
sufficient evidence is produced
reasonably find that
the deceased failed to use due
could
argued
Although
language
care.
it is sometimes
and the
eyewitness
of some decisions seem to indicate that express
testimony of the
of the favored
at the
actions
time
party
question
necessary
in order
is
to overcome such presump-
going
tion
not the
such is
case for the burden of
forward
may
by
with the evidence
be overcome
circumstantial evi-
dence,
by
for a
facie case can be
prima
established
circum-
by
stantial
testimony.
evidence the same as
direct
is
This
Thayerian theory
Wigmore
by
subscribed
and in this
Morgan
by
kind of a
by
case
the American
adopted
Law Institute’s Model Code of Evidence and apparently
long
this court
approved
line of cases.7
Luke,
501,
350;
6Bullock v.
98
Skinner,
Utah
98 P. 2d
Hickok v.
1,
514;
113
Walsh,
Utah
190 P. 2d
276,
Conklin v.
113 Utah
193 P.
437;
Norton,
2d
121,
Gren v.
117 Utah
vincing contrary question jury evidence which ais decide and not for direction or comment the court. From the evidence case, jury produced this could reasonably that, find bicycle decedent rode his into an in- sign through highway with a stop and tersection with a statutory against during nighttime, without him ascertaining lights that required and without or ordinance nearly as to constitute cab was so approaching defendant’s collision, was too late avoid a an immediate hazard until negligence doing guilty which proxi- and in he so was causing mately and or contributed accident caused being case the that used his death. he presumption Such safety due care has no effect on this for his case. why not There is another reason does presumption affect the result this case. Here the defendant has the burden of trier of the facts that decedent persuading negligence guilty contributory which proximately being he, caused death. Such with- his defendant’s burden going only out the the burden not for- has presumption, ward with the evidence also of but the trier persuading So, only decedent’s fault. since defendant has the going burden of forward the evidence but of persuad- ing question, on that such would not affect defendant’s at burden all.8
Though there is evidence from which trier ample reasonably against find these issues plaintiffs, does not mean that the court could direct verdict determining question them. In we must consider all may evidence inferences be drawn therefrom in a most favorable and if plaintiffs when con- so sidered reasonably the trier could not be convinced guilty negligence decedent was which proximately caused death, jury question his then there was a and the should case be reversed. The do not plaintiffs have the burden of prov- ing that decedent was free from which proxi- mately caused the accident fact set particular issues, facts on those but defendant to a entitled directed verdict if evidence that the Presumptions: 8See Nature, Purpose Their Reasons, Morgan, pages Edmond M. 15 and 22. *9 322 not convinced unreasonably they if were to act
would Defendant to such issues. in respect fault decedent’s guilty of contribu- was decedent the burden proving has causing Also in accident. tory proximately mind that considering there we should keep the evidence got he or how what decedent did evidence of no direct accident, direct evidence and that all of the the place surrounding the accident comes from circumstances on witness, who is interested of the taxicab an driver reasonably- If testimony may be discounted.9 we whose events, of these it would probably decedent’s version had very different picture. present defendant’s burden of and that mind proof Keeping surrounding the the direct evidence on the events acci- all whose are dent comes a witness interests reasonably jury I think that the not believe plaintiffs, fact even statements of some prevailing opin- testimony. ion and much of the cab driver’s Thus the driver’s immediately whom he fare after the accident picked up during son with the decedent’s who talked driver the after- day noon of the accident each testified the driver bicycle told him that he did not see until after he felt its with the cab. So would be reasonable to impact testimony believe his that he saw the front wheel of the bicycle when he 10 was or 15 feet from it. Also the driver’s testimony only traveling he from 20 to 25 miles hour, many other per to, details which he testified reasonably trier of the facts could not believe. In this con- nection I think the liberty should be at to consider facts which are probable possible without direct making of their existence in proof their up minds on what Although to believe. I consider very this a close case I concur that there were issues to be presented directing and that the court erred in a verdict. Comm.,
9See Smith v. Industrial
104
318,
Utah
“that matters of jury questions”. generally are cause agree I also appeal directed, the evidence on will be
“that where verdict is light it is in a most to him whom canvassed favorable directed.” But I think the latter rule been some cases pushed has lengths. I unreasonable do not think it was meant is, scale, cover clear cases where there on one of the pan eyewitness testimony and cir- of the unimpeáched .physical leading cumstances to the up event the accident and the accident itself attended disinterested witnesses showing no inherent inconsistencies and no reasonable anything which would their observations but rather impede by circumstances which their on impressed observations minds; their whilst on the other are or pan remote placed barely question- conclusions on possible based attenuated or testimony imagined able or on or hav- strained possibilities ing no substantial basis.10 case, legal
In
duty
there was a
on the deceased bi-
cycler
light
to have a
on
his vehicle. It was
law not to have one. He did
have
one. It is admitted
in the prevailing
guilty
that he
opinion
was
of “some”
negligence as a matter of law. But it is said that
it is a
jury question as to
carry
light
whether the failure to
a proximate
accident;
might
cause of the
that the cab driver
anyway.
not have seen it
But this is not a case where an
object
impervious
or
substance
was intruded between the
light
where the
point
should
driver,
have been
cab
10An illustration
of what
I
my
is
dissenting
mean
contained
opinion in the case of
Co.,
Tuttle v.
Express
Intermountain
Pacific
420,
121 Utah
such a light bicycle, have would, ing object had there light lack of a hence the it made useless nevertheless the collision. cause of proximate not have been the light required it is because is why a reasons One days gleam nights dark, misty rainy or on known that warning drivers means one of the best from a although another, may approach presence bettering or rider. vision of the driver of little use *11 lights in very turn their on travelers That the reason dusty go through foggy or areas. they daytime when might could not have seen in this case or That the driver cab conjecture light and there is it there is pure had conjecture. Cer- really for the no basis even substantial conjecture necessary tainly should he whose fault makes it favor. Before we can take a case have his operate not conjecture jury, to even must we allow it from the light, a have been ineffi- the traveler carried would had a for cacious where there not even substantial basis such obligation duty conjecture? so, If a imposed positive (statute ordinance) and the of law which purpose negated. many give will in cannot cases be We imposed duty, derelict the benefit of such party, specu- lation. It must at least from the evidence that under appear it could and would not have circumstances been effec- tive and not that possible “because weather and obscured vision the cab driver lamp any
could not have seen the event.” “darkness, very wetness, rain, The mist” and likelihood mistaking makes depth perception lamp imperative and negligent. say lack it all the more To that under such might light circumstances the find that the lack of a a was not proximate cause to would seem place premium light. carrying on not
I in this case whether the deceased could doubt ordinary prudent [lightless] person failing appraise an to “acted as reasonably accurately speed, proximity or its so as cab ability safety.” misjudged his to have to clear the intersection in instrumentality carry the which was But if he failed judge designed of those factors him better aid in learn- or served to aid others would have warned ing ordinary could he be the prudent of his how approach, requiring The that occasion? law man in his conduct on required. Could sets in the standard of prudence part argument any if an auto driver went out in such be made lights cycler duty ? The kind of weather without no less. brake, good required by is it a horn or a both
How emitted, If no there is no horn so sound could law? be jury, could the unless the circumstances were that as it could be matter law said the sound a horn heard, could not in event have been permitted that the horn speculate would have alerted an inatten- tive Only driver or in a case the court pedestrian? where say can horn, as matter of law that the sound of the had sounded, there been one and had it been would nevertheless heard, not have been could it be said to have been in law *12 non-contributing to the accident. Such ease would be anal- ogous to say where the case court must that an imperv- object gleam light ious would have shut off the from a had light. there If there only were no totally brake or inadequate brake, could the be alowed to in speculate a situation where are used, brakes intended to be that never- theless had there been brakes the use of them could have had no effect in course, impeding driver’s vehicle? Of any braking if possible sufficiently could not have reduced momentum, therefore the speed might the accident not have been though avoided but even the effects of a stronger might impact have been. Unless the situation is such that it is clear light, that had there been a or horn utterly have been brake, would nevertheless devices against situation, must as we presume, useless devices, required one driver who lacked mitigated avoiding its accident
might aided in contributory to the severity was hence that its absence flowing damage therefrom. accident, or the lights, I think had no that deceased of the factor Outside jury question whether may dubitatively here it have been have an or- as would the intersection he across proceded here dinary of the discussion For purposes man. prudent ngeligent in I think he was in I assume so. But progress, failing light carry a cannot allow to and we law case whether that to under the facts of this speculate light might nevertheless not have served purposes required question which it so as to leave proxi- jury. to I think the verdict pursuant mate cause to “no be affirmed. the instruction cause of action” should HENRIOD In Mr. Justice to opinion, appears play his light. He the fact that the deceased did not have a down casually it rather and then discuss proceeds mentions including without fact of the case on facts the salient light seemingly theory of a on the the trial absence light court did not or attribute the absence of the mention contributing as a cause as the for his directed verdict basis Regardless “no cause action”. whether the trial court assigned ruling, may correct basis for his that he ingredient every not have mentioned made up contributory regardless of the deceased or even if he required omitted element which would have jury, ruling him law to take the case from the his question presented the motion for a directed verdict must stand or fall on whether the conduct of the deceased in proceeding without a is in law such as prevent recovering. his heirs from
The matter then comes down this: The deceased was clearly negligent failing carry in law light; *13 gleam warning light one absence of was light required very law for which the purposes necessarily have be assumed to contributed to must from the accident unless we shield the deceased conse- gratuitous quences of his dereliction a purely assumption conjecture that the mist darkness would never- and/or gleam light. theless have obscured had there been a goes showing Surely when the defendant extent required that traveler without a device was proceeding designed by the law which was to warn the defendant and he, defendant, others of the traveler’s does approach, go not need to further and had the traveler show that with such device it would have been efficacious equipped warning (the defendant). Certainly him had there been light gleam emanating bicycle, from the decedent’s gloom would have had some depth into the even penetration though may that have been in a penetration somewhat away cab, direction fact itself not certain from gleam might very the evidence. The have been faint and could have concluded the cab that driver did or light could not see it but when there no to send forth gleam, should permitted speculate had even there good. been one it would have done no Even gleam might, the faintest through if traced the chain of alerting effect in its or possibly probably traveler in the darkness his possible response, or probable mean the difference between life and death. Ships pass in night every avail must themselves device to alert each other and avoid collision. light required by
If a is law and hence the failure of the requirement light, have purpose which is to counteract effects darkness of visibility, lack law, then very implicit failure (the negligence) fact that the failure caused or contributed to grew the accident since the accident out of the condition of visibility darkness impaired due to
328 logical simple would be conclusion Such
darkness. common sense. the reasons from the withdrawn case were
If this requiring to state, prove to plaintiffs not amount I it would negligence. contributory Would from of deceased freedom required what penetrating to show have been defendant morning gleam on that been needed would have of power light what- carried no the fact that the deceased view of in negli- agree that, the face of admitted I cannot soever. negligence must gence law-—a defendant the face —in required what the law carried had the deceased that prove adequate occasion. carry, for the to it would have been him defendant would sense It but commonm seems negligence only on the out case of part not made the latter had no when it was disclosed that the deceased made, rebuttal, light, subject to at least but would have contribution and efficient prima facie case proximate require the To defendant the cause accident. go carry him of antici- further would be to make the burden by way plaintiffs matters introducible pating visiting require- rather than upon rebuttal plaintiffs ment contributory neg- prove showing from
“to facts decedent’s freedom causing ligence proximately the accident.” sequence (1) The would follows: be as Evidence negligent defendant was heirs a reliance perhaps exercising that deceased was presumption due care safety for his own after introduction of matters of induce- (2) ment.11 Defendant’s evidence of his own conduct negative charge claimed to show due care and to negligence (3) addition, his evidence of the de- required legally ceased’s failure to duty his perform 11 I should note here that Mr. Justice Wade does not think that any bearing has in this case. I Since do not want complicate case, already expanded, further far too I shall make issue no of that matter. which, not light, would failure carrying very for which said law, purposes one of the but since of his warn others light required approach, was to the failure carry deduction that intrinsically would contributing (4) Mat- of the accident. cause carry it awas gleam that a would show the plaintiffs ters might not) (not have alerted the gleam, that such was such the situation defendant because *15 totally to one, invisible had would been if there rebutting evidence, (5) of such In absence the defendant. directing case, ruling court, a verdict in this the as “no of action”. cause above, I fur- I shall not allude of what have said
Outside concurring in case Wade’s this opinion ther to Mr. Justice 12 13 Mr. to in footnotes and below. as referred except in footnote 7 to the first of his paragraph Justice Wade concurring Tuttle case in this case12 has cited the opinion produced presumption mak the serves until evidence is 12 Whether overcoming it, only ing prima maintain, I until facie case as why happened produced the accident after some evidence on how or party proceeded; “required the disfavored has whether the burden” opinion used in Mr. Justice Wade’s in the Tuttle case meant the going prima by per burden of so far as make out a to facie defense suasion, stated, only or as I then understood it and the so burden of proceeding given presumption; effect was to the whether at after ways simply expressing idea; bottom these are two the same myself my opinion I whether am inconsistent with in in the Tuttle my opinion case; opinion case in and this whether the of Mr. Justice only holding Crockett in the Tuttle case is consistent with a that a prima overcoming presumption nullify it; facie case will whether going persuading the “burden of forward” now means the burden of presumption the fact trier spite my that the has been overcome in statement in the Tuttle case I understood Mr. Justice Wade then duty go duty to use it in the sense of a forward and not a persuade; presumption whether use of due care for safety temporary ephemeral one’s sanity is as presumption as the * * * is; as I rather think it whether there is not a great presumption different between a which the law furnishes be experience cause of the out of mankind and an inference which arises very case; of the evidence in the presumption and whether if the I do not which authority proposition court of this as think that I do not state because in this think is established joined of his opinion in that part one Justice more than efficacy dealing and duration the Tuttle case safety which for his of due care of the presumption accident.13 killed an a decedent attends may stay part suggested, in as disappears the inference Ias duty judge putting case; to de- whether in the evidence quantum or insufficient is sufficient if the of the evidence cide goes against presumption so that it out prima make facie case complicates stays in; introduce a rule which this does not whether whether, discussion; presumption applying procedure under judge to make a evidence is not sufficient if the decides that though presumption stays prima even facie case gained beyond such, anything what mentioned as and whether stays if the could be deduced or inferred unmentioned; whether, contrary if there is evidence but not judge presumption the sufficient to overcome the mind judge presumed fact” —these should “direct to assume questions prompted and other me footnote 7 of occur to surely stay They opinion, Mr. Justice I Wade’s cannot to discuss. will press for answers at a later time when fact situations make more *16 apposite their consideration. 13I call Mr. attention to Justice Wade’s citation of Tuttle v. Pacific Co., authority Express supra,
Intermountain for in his footnote 7 as paragraph concurring opinion the statements made in the of his first express opinion in this case. I no at this time as to the correctness principles by paragraph. or incorrectness of the stated him in that But I Express doubt if the case of Tuttle v. Intermountain Pacific Co., supra, authority any can be cited as court of those statements. majority opinion There question was no in that case on the of the efficacy presumption extent or of the that one uses due care for his safety. opinion Mr. Justice Wade wrote the main in that case. opinion That McDonough. was concurred in Mr. Justice Mr Jus participate. tice Henriod did expressly Mr. Justice Crockett passing upon avoided presumption office and extent of the or on question presumption of point when the was nullified or at what of the case it required went out and the amount of evidence to over it, come theory and this that had decided that going deceased had been north and hence the conclusion was inevitable that the of the P. I. E. had caused the death. But at all
3B1 agree it is I that injured anyone in an killed conclusion inevitable “not the principal [party] event, in the [collision], other or the intersection contributing guilty necessity of some carelessness must have mishap”
to the to that state- to add to an observation but I am constrained ment.14 question for which Mr. events that case could not have decided authority I it in this case. In that case dis- Justice Wade cites as concerned, stating principle far as the matter of the so sented agree being I could with Mr. Justice Wade that the deceased clothed “required burden”, presumption, meet the the defendant must required “only, going if was meant burden [the burden] * * * hap- forward pened”. some evidence of how the accident [with] my dissenting opinion An examination of shows that I went ‘required expressly no further. I said “The burden’ as used quoted sentence, assume, satisfying particular I is not that of quantum proof introducing enough satisfy or of evidence presumptive fact The is overcome. going (Emphasis part burden is of the forward.” quotation.) point my opinion “Hence, At another I where stated [emphasis part quotation] there is evidence which shows why (circumstances happened it)
how or presump- accident party tion that the care, who was clothed with it used due is sluffed * * plaintiff off proof, and the is left with his How the support by above can be construed to inbe me seem- statement ingly included in opinion, footnote 7 of Mr. Justice I Wade’s am at a loss to understand. There can by minority be no stare decisis of the court. Where judge one participate does not very and another dissents on the question supposed decided, deciding have been and a third avoids by taking supposedly a view that require question does not decided, respect no question law to that is laid down decision of the court. 14Judging many cases which came before me while I was on the trial bench and appeals from the my records on to this court and experience life, my opinion it is that most accidents are caused *17 negligence of parties one or both or more and with due care avoided; have been especially and this is true with intersection mishap acci- pure or unavoidable The accident
collisions. rarity. dent is a The ones. indifferent and reckless drivers and are careful There negligence injury who suffers and person who is careful guarded should be What redress. obtain should another flimsy un- recovery or or permits policy which manufactured cases. deserved applies to the also largely and that the courts with The fault lies assessing fixing problem blame and whole The of review. courts attend those that transcend damages which effects involves principle of distribution It involves or cases. individual case encouraging auto- policy process. pooling It involves a risk healthy practice liability carry This is a insurance. owners to mobile encouraged. proper But distribution and which should be extended placed permitting the unentitled premium is on if a of risk suffers increasing apace. type are this of insurance The for conditions, people, especially recover. rates with fixed inflationary those Under type on hardly and incomes, of insurance afford near fixed can it, dispense times at tight budget and tend to take a chance consequences themselves, their and health with severe economic easy injure. they may recov- the effect of those So families and/or companies large insurance verdicts is transferred to the eries and large finally public payers to the at and from them to the rate and importance. Juries, problem increased rates. The is one of national times, think, judges forget which the and at money I the barrel from pay damages Until some comes from is bottomless. damages actually handling recovery better method of claims for by society than the one suffered from the fault of another is devised attorneys large plaintiff’s prizes which holds before in the form of contingent portion verdict substantial of a collected and before attorneys’ by every insurance legally motives to defeat such verdicts means just available, temptations available —and sometimes on —the flagrantly present. both sides will be circumstances the Under such judge jurymen battle for the mind and for the minds of the judicial calm, will be so intense as to not be conducive of the atmo- sphere legal inquiry produces application and of sound principles dispassionate objective finding. The immed- fact remedy partly withdrawing jury by granting iate lies from the a motion to dismiss or motion for a directed verdict or motion for judgment notwithstanding when, case, clearly the verdict as in this appears negligence complaining part that in law there was party proximately deceased and that such caused or substantially injury giving party; contributed to the to such even *18 straining defendants; plaintiffs in not treatment to both handed prejudicial instructions the verdict seems to find error in because reversing judgments unsatisfactory reviewing judge; in not reasonably they prejudicial instructions when are because of claimed adequate apparent clear and unless the claimed error in nature the law embraced the instruction is of such a as could be reasonably expected jury; to have had an influence on the efficient concluding “reasonably in not that a find” what no man find; stretching of common sense and reason could in not “reason- preposterous impossible, able” to include the nor the near what nor sense; cutting clearly is not common down verdicts excessive com- pared comparable injuries. impairments to reasonable verdicts for McDONOUGH, J., dissenting concurs opinion WOLFE, J.C.
McMAHON v. TANNER. August 8, (249 No. 7673. Decided 502.) 1952. P. 2d