169 P. 949 | Utah | 1917
'The assigned errors practically all relate to the findings of the court. In view of the nature of the case the court’s findings perhaps cover more details than was necessary. For the reason, however, that the objections to the findings go only to particular portions in which evidently rather than ultimate facts are found, and for the reason that it is almost impossible to correctly reflect the findings in a condensed or abstracted statement, we deem it best to set forth the findings of the court in full. Omitting the formal parts they are as follows:
“That on the 15th day of January, 1916, the plaintiff was operating an automobile, the property of one Randall, and that about one o’clock of said day he was driving the same westerly on Seventh street, intending to cross said Washington avenue and the lines of railway of the defendant company in a westerly direction. That as he came out of Seventh street onto Washington avenue, and while running his said automobile at about twelve miles per hour, and when about forty-five or fifty feet easterly of the west track of the defendant company, he looked northerly and saw the interurban car of the defendant, same being the usual interurban car of approximately forty-eight tons weight, and about sixty feet long, approaching, and ,at a distance of approximately 123 feet. That the plaintiff, while he could have stopped his automobile in about four feet, did not do so, nor look nor otherwise pay attention to such approaching ear, but continued in a slightly southwesterly direction across the track upon which the interurban car of the defendant was approaching, and was struck at a point on said Washington avenue about or just immediately south of the south line of said Seventh street. That said automobile driven by the plaintiff*287 was in good repair and condition, and could have been easily stopped by the plaintiff in time to have avoided being struck by such interurban car approaching from the north, at a speed testified to of from twelve to twenty miles an hour, and that by failing to do so, or failing to heed the approaching car, the approach and presence of which he Imew, he was struck by the south-bound interurban car of the defendant at a point herein set forth. That the motorman of the defendant company operating its south-bound interurban car, as soon as he discovered the automobile of the plaintiff intending or attempting to cross the railway track in front of the interurban ear, immediately applied the brakes on said car and did all in his power to avoid striking the automobile driven by the plaintiff, but that the distance between the point of so discovering the intention of the plaintiff in driving his automobile across the track of the defendant, and the point where the plaintiff entered upon and was crossing said track, was insufficient in which said car could be stopped, and thereby avoid the injury. That from the point where the automobile of the plaintiff was struck by the defendant’s south-bound interurban car, and thence southerly, the double tracks of the defendant are approximately six feet apart. That on the easterly track there was approaching from the south a city car, traveling slowly and under control, and being so operated as to pass over the switch just north of said Seventh street, and onto the west track, and after the interurban car had passed said switch going south. That the motorman of said north-bound city car, upon seeing the collision between the interurban ear and said automobile, immediately applied the brakes to said car and brought the same to a stop as quickly as possible, and within some eight or ten feet, and a point approximately one hundred feet south of said point of first collision. That the south-bound interurban car of the defendant, having struck and caught the automobile of the plaintiff in front and on the easterly side of said interurban ear, pushed or dragged the automobile southerly and along and between the two tracks of the defendant, and against and along the side of the north-bound city car, to a point of stop*288 ping, about one hundred feet south of the place of the first collision, and that when stopped, the automobile driven by plaintiff was wedged between said interurban car and the rear end of said north-bound city car, and that the injuries complained of and sustained by the plaintiff, if any, were occasioned by the collision between the south-bound interurban car of the defendant, and the automobile being driven by the plaintiff, and the dragging of said automobile in which the plaintiff was riding, along the track, for the distance in these findings mentioned, and into and against defendant’s said north-bound city car. That the motorman in charge of the defendant’s south-bound interurban car brought the same to a stop with due diligence and care, and as quickly as same could reasonably be done after discovering the position of the plaintiff and the said automobile with relation to said west or south-bound track, and the intention of the plaintiff as the •driver of said automobile to go upon said track and across the same in front of said south-bound car. That at, and prior to, the time of the injuries complained of, and the collision set forth in the complaint herein, the plaintiff was fully familiar with the physical situations at and around the place of the accident, including the streets thereat, and the railroad lines of the defendant, and the manner and character and operation of the defendant’s cars, both interurban and city cars, over said tracks and along said Washington avenue, and that the plaintiff was likewise fully familiar with the operation, management, and control of the car being driven on the day in question, and the injuries herein complained of, if any, were due to the inattention and lack of care upon the part of the plaintiff, with full knowledge of the surroundings, situation, circumstances, and conditions, including operation of both his machine and the presence and location of the car of the defendant.”
In view of the foregoing findings plaintiff’s counsel earnestly contend that the district court ignored the so-called last clear chance doctrine in determining the
“Q. And at that time you saw the car some two car lengths north of the switch? A. Yes, sir. Q. Why didn’t you stop your car and wait until the street car passed ? A. Why, under ordinary conditions, we always get plenty of time, and there was the switch that they were supposed to sIoav down at, and I did not have really a third — less than a third — of the distance to come that they had to come. Q. I just asked you why you did not stop ? A. I supposed I had plenty of time. Q. To get across? A. Yes; I was hurrying across; I thought I had plenty of time. Q. You did not slow down at all? A. No, sir. I did not slow down at all.”
The objections to findings 4 and 5 require no further discussion. There certainly is some substantial evidence in support of the material facts contained in those findings, and in view of that they are binding on us.
Passing now to the objections to the other findings complained of, we find that counsel in effect concede that there was at least some substantial evidence in support of them. For example, referring to their objection to finding 6 counsel, in their brief, contend that the “preponderance of the evidence ” is “ contrary ’ ’ to the finding. The obj eetion to finding 7, upon the other hand, is technical rather than substantial. The finding relates to distance, and any one knows that distance, like time, is a matter largely of judgment. The mere fact that the court may have found the distance somewhat différent from what counsel’s judgment would be does not constitute prejudicial error, and we so find.
As to finding No. 8, counsel, in their brief, say: “We contend that said finding is not sustained by a fair preponderance of the evidence, and is against the great weight of the evidence. ’ ’ Now, while it is true that every finding of an affirmative fact must be based on a preponderance of
From what has been said, therefore, it follows that the judgment should be, and it accordingly is, affirmed, with costs to respondent.