190 P. 932 | Utah | 1920
Plaintiff, a minor, by her guardian, brings this action,to recover damages for personal injuries resulting from an automobile accident alleged to have been caused by the negligence of the defendant. The grounds of negligence alleged are: (a) That defendant operated the car at an excessive rate of speed; (b) failure to give any warning or to look ahead to see if pedestrians were crossing the intersection of the street; (c) failure to have the car under proper control when crossing the intersection; and (d) operating said ear in a negligent and careless manner without regard to the safety of the plaintiff.
The defendant denied the negligence and set up as an affirmative defense what is designated contributory ' negligence. At the close of the testimony, the court directed the jury to return a verdict no cause of action. The plaintiff appeals, and assigns that ruling of the court as error.
The accident occurred on the main street of a village in Cache county, this state. The following diagram will assist in understanding the facts:
On the afternoon of the day of the accident the plaintiff, pulling a small express wagon, came down the cement sidewalk, traveling westward on the north side of Depot street, and on arriving at the street intersection, at a point at or near A. on the diagram, turned and proceeded to cross the street to the south corner, upon which a bank is located. A small automobile was parked at the point marked A. There was also a tree near that point. The plaintiff passed behind the automobile, under the tree, and turned south across the street. About the same time the defendant approached the intersection driving north on the west side of Main street. There was no obstruction to prevent the defendant from seeing the plaintiff at the time or immediately after she turned across the street from the point marked A. The testimony of the plaintiff’s witnesses is that defendant approached the intersection traveling about twelve or fifteen
The witnesses all agree that the accident happened at or near the point marked B on the diagram, which is some two-thirds or three-fourths of the distance across the street from the north to the south. As stated, there is some conflict in the testimony as to the rate of speed at the particular moment of the injury. "We regard that, however, as of little moment. It appears from the defendant’s testimony that be saw the plaintiff in ample time to have avoided the accident bad be assumed that the plaintiff would not heed the
The plaintiff was a little girl four years and ten months old. She was lawfully on the street at the time of the accident. The defendant’s duty to the plaintiff cannot be measured by what he might reasonably have expected to be the conduct of an adult person in such circumstances. It was his duty to avoid the accident if possible in the exercise of ordinary care, and it was for the jury to say whether he was justified in assuming that the plaintiff would do or might do the. acts which the testimony shows she actually did. A child of that age cannot, as a matter of law,
“The degree of care required of a child must be graduated to its age, capacity, and experience, and must he measured by what might ordinarily be expected from a child of like age, capacity, and experience under similar conditions. If it acted as might reasonably he expected of such a child, it cannot be charged with contributory negligence.” Gesas v. O. S. L. R. R., 33 Utah, 156, 93 Pac. 279, 13 L. R. A. (N. S.) 1074.
See, also, Groesbeck v. Lakeside Printing Co., 55 Utah, 335, 186 Pac. 103.
There is no testimony in the record tending to prove that defendant did not have his car under control or that he was operating it in a reckless manner, but there is testimony, in our judgment, entitling the plaintiff to have the question submitted to the jury whether or not the defendant was negligent in proceeding over the cement crosswalk in disregard of plaintiff’s rights, after he had observed the approach, of plaintiff and knew that an accident was imminent and made, no effort to stop the car. An operator of an automobile on a public street is not an insurer against
There is a conflict in the testimony respecting whether the defendant sounded the horn of the automobile at or about the time he crossed the street car track. Under the circumstances and facts of this ease it is immaterial whether such alarm was given or not. The plaintiff was a little girl not yet five years of age. The ordinary child of that age could neither appreciate nor understand the object sought or the reasons for giving such warning. If it made any impression at all upon her mind, she probably accepted it as for her amusement rather than anything else; in other
The testimony shows that the intersection of the streets was in the center of the town where the accident happened. A bank occupied one corner, a restaurant another, and a store each of the other two corners. We are not prepared to say that operating an automobile over such intersection at the rate of twelve to fifteen miles per hour, as witnesses for plaintiff testified, was .reasonable under the circumstances. The facts, however, do not show that the operation of the car at that rate of speed was the .cause of, or con-’ tributed to, the accident. The only negligence of defendant shown by the testimony, if he was guilty of any, was in proceeding eastward over the crosswalks after he observed the child, upon the assumption that the plaintiff would heed his
We are of the opinion, and so hold, that the plaintiff was entitled to have that question submitted to the jury under proper instructions as to the degree of care
It follows that the judgment of the district court must be reversed, and a new trial granted. Such is the order; appellant to recover costs.
