*1 “family” Abstract, in its Statistical fined the word page 269, persons by blood, group marriage, adop- more related “a of two or or residing in the same household.”
tion cited above do The insurance cases not hold that a parent family after is a member his son’s the son establishes acquires “family a new household of his own”. There- controlling. fore do not them to we believe be given If any meaning, the word “immediate” is to be must be considered to have a restrictive effect “family”. word As used in the context of defendant’s offer synonomous it is with or “closest” “nearest”. Therefore giving everyday these words their common meaning, we Bailey, father, find that W. F. was not a member of family son, judgment immediate of his Frank. The affirmed. Costs awarded to respondent.
LATIMER, McDONOUGH, CROCKETT, JJ., concur. WADE, J., concurs in the result.
HUDSON v. UNION PAC. R. CO. (233 357.) Decided June No. 7449. P. 2d *3 J., See 52 Railroads, C. crossings, sec. 1708. Railroad party third liability to injured automobile Jur., Automobiles, at. 5 Am. 486; sec. 90 A. L. R. 984. E. Clyde, Allan Mechan and Woodrow D. Edward W.
White, City, for Lake all of Salt appellant. Leverich, Bronson, Miner, A.
Bryan M. P. J. U. Howard City, Coray A. all of Lake re- and Dan Salt for Alsup, F. spondent.
WOLFE, Chief Justice.
Mona Hudson sued the Union Pacific Railroad C. Com- damages injuries to recover for personal suffered pany crossing accident. She from a a railroad directed appeals the verdict in favor of defendant.
248 accom- Mrs. Hudson May afternoon
In the automobile, on Jones, of the driver the Era Mrs. panied Logandale, The de- Nevada. outside ride a short pleasure northerly general direction in a runs track fendant’s north straight thousand feet one for about is practically road dirt crossing unimproved here involved. angles right feet and at a 75 point at the track crossed feet, it then for 800 distant, it and paralleled turned a ravine. down into track and went away from the turned the the track proceeded across drove Mrs. Jones reaching highway. The main the ravine the purpose blocked, their they around and retraced turned so road crossing defen- the car was struck way to the where by surveyor freight a map train. A contour prepared dant’s feet lower than is three five shows that the road slightly up- other and it is track where each parallel grade, at where it last feet approaches angle. traveling The train estimated at between hour, car 18 to 15 and 20 miles per approximately In have occurred miles hour. order for collision to peí rear car the train must have been to the as the proceeded along the 300 foot stretch. parallel alleges negligent defendant was complaint failing ring or There no bell whistle. sound witnesses to accident other than train crew Jones, automobile, the two women. The driver Mrs. did not at the trial. Plaintiff did appear testified she not hear the bell or other sound of the approaching just until train looked and saw it up she accident reiterated, “Absolutely occurred. On cross-examination she *4 sitting there was no whistle of kind.” She was front seat on the hand side and the train struck the car on that side. The windows the car were down. She talking hearing and Mrs. Jones were about the “click” of the automobile transmission when 20 miles hour per speed was reached. Plaintiff in a position was where she would likely ringing have heard railroad, bell. In behalf of the regular engineer that he sounded testified long turned on longs, and a short whistle —two —and crossing. After two miles before about automatic bell occurred, with the ran to the automobile he the accident women. Then he re- the two to aid crew members other off, engine to turn bell of the diesel to the cab turned forgotten an automatic bell to do. It was which he had by He testi- valve. by air controlled operated pressure, hearing that in the bells that he was so accustomed fied it was accident he did not notice still excitement ringing The fire- he had talked to Mrs. Jones. until after blowing bell and the was that the whistle was man testified ringing He testified that at the time of the collision. (the fireman) engineer he first saw the whistle after blew He saw of the car as it came out of the ravine. top up engineer and turn reach the whistle cord up pull controlled the He further testified on the valve which bell. engineer ringing until went that the bell was still after the to turn it off. The testified that back the cab brakeman ringing. there a whistle sounded the bell Three other crew members testified to the same effect. The freight conductor stated that the noise of the cars drowns caboose, out the the bell in the he heard it sound of ringing after the train Plaintiff that contends stopped. this state the evidence creates a conflict which must be jury. resolved here issue involves the relative presented probative negative testimony.
value of so-called and positive jurisdiction concerning in our law this problem following language has evolved from the cases Watkins, found therein. Russell v. 49 Utah 164 P. weight negative testimony “The the witnesses did not [viz ordinarily jury hear the defendant’s automobile is for the horn] determine; hut, physical attending when conditions and the circum- highly improbable stances are such as to render could hear, we think the rule should be and is otherwise.” *5 250 because reversed was for jury verdict
A horn sounded not hear the did testimony that witness did not honk negligence that defendant not evidence was 367, Line, Utah Oregon 59 Short In Jensen horn. his v. heard testified he 104, 101, companion the deceased’s P. 204 noisy passing to another attention bell, paying but was no the deceased which train struck crew of the The train. ringing. The court stated: bell was their testified listening to have been the witness claims case in which is not a “This case in this was signals hear them. witness failed to listening directed another consciously His attention was at all. engrossed with matters.” direction, was other and his mind An Judgment important was reversed. for the plaintiff by v. qualification added Union Pa to the rule was Clark 1050, 29, Co., 1053. At 257 P. Railroad 70 Utah cific time of that foggy crossing very and two accident was girls whistle in or for the train listened school particularly just they Two men late were for school. to learn how der driving they were cau a team were toward they were tiously alert for train because the sound fog. The court this evidence to see in the held that unable jury question value and created a as was probative give states, warning. failure to opinion * “* * negative testimony, it is not the fact of char- negative testimony, regarded which is as not sufficient acter of signals given, support a verdict that were not or to raise conflict testimony rung that It with the bell and whistle blown. is clear that, that where one witness testifies whistle was sounded and the rung, equal opportunity and another witness of know bell the fact listening that he ivas testifies to see whether the whistle did or did ring, not sound and the and that bell the whistle did not nor sound ring, positive testimony testimony; positive and, met the bell is if equal credibility, testimony the witnesses are of one weight entitled to as much the other.” required the rule jury question Thus that before a concerning conflicting sig- created testimony warning given, were nals they appear paying “it must be made to some attention to actually they position
what occurred and that were in a where what was done or what was not done.” Anderson could and did observe Co., Utah 289 P. Railroad v . Union Pacific *6 Co., 111, Lake & Railroad 109 Utah In Earle v. Utah Salt stated, 877, 878, briefly the court 165 P. 2d “As to whether the train sounded a whistle for the there dispute testimony think is a in the which we should be determined jury.” negligence jury Defendant now maintains that no issue of failing warning out, in to sound a made because affirmatively does not that Mrs. Hudson was lis- appear tening or attention to determine whether the train paying going Admittedly necessary to whistle or not. this was cases, under the Clark and Anderson in order supra, change negative testimony the characterization of that no warnings testimony were heard to to the effect positive that, listening “I was for the whistle and bell but were given.” governing Such distinction the relative pro- testimony concluding bative value of plaintiff’s jury to a trial is not sound. All that need appear is the witness was so situated in relation to the train at the warnings given time it is claimed the that said warn- ings would have awakened her attention to them. The cir- bearing hear, cumstances on her opportunity capacity deafness, such as possible wind direction pronounced af- fecting sounds, the and noise of speed the train and of the car, surrounding of country, topography in absorption thoughts conversation or with her own or devices and other factors which would enable the fact finder to evaluate the probative testimony force of her should be considered. convincing The testimony of power that a sound was not according heard varies to the opportunity the witness n giving it observe, to hear and but a in an auto- passenger mobile need not persistently his ear cocked for the keep sound of a train. In this case the necessarily is negative confined to evidence in the fact that proving whistle or bell was not sounded. If such evidence is un- worthy of belief negative, simply because it is then a plain-
252 always The nearly must fail. circumstances
tiff like credibility question of wit- fundamentally issue considering close the car proximity nesses other, Hud- Mrs. to each they travelled parallel while train likely have it is that she would where in a son was position bell, and as no whistle, least there is or at heard the mat- was so absorbed other attention that her evidence jury question heard, a is pre- not have would ters she sented. Jones, driver, negligence is not imputable Mrs. driver, invitee or passenger
to the plaintiff, 99, 347; Jensen, v. 129 P. Atwood Utah v. 42 Utah Lockhead 137; Co., 140 Martindale Light 44 P. R. Utah & Oregon Co., P. Utah v. Line R. Short negligent contributorily only can be degree failing *7 to of care matter of law exercise a customarily a reasonable expected prudent passenger Montague v. Lake circumstances. Salt & Utah under like Ry. Co., 871; P. v. Lake & 52 174 Salt Utah Cowan Ry. Co., P. view 189 599. In of the evi Utah Utah contributorily her, not dence favorable to plaintiff most negligent following law as a matter of for the reasons. First, general background. Hudson is resident Mrs. a Overton, City, Nevada, Lake but had visited three Salt every year or four weeks while her husband to attended his business. Her last visit to Overton was prior shipping During in 1946. The accident in 1948. the four happened occurred, months Overton before she this accident not traveled road. she had this She was out of town visitor, crossing, though not familiar with this had she acquainted been over it before in her lifetime. not She was with the train schedule. This was local a branch line run ning through country. only broken desert The train made day. Overton, one round While Mrs. Hudson trip was in stayed managed by gone she at a hotel Mrs. Jones. She had riding with Mrs. often and Jones testified that she awas driver competent to be appeared attention to paying driving the railroad cross- her at time she approached ing. argument
Much is submitted whether the upon during could have observed the train time she traveled feet, out of the ravine and to the track for 300 parallel directly then towards the for the last 75 feet. The contentions are based various esti- upon mates as of the car and train and speed also conclusions drawn as to the distances traveled and relative of the train position to the car the car as came out only ravine —drawn from the positive undisputed case, fact in the jury a collision did occur. A could find that could have observed the train as the car came out of the ravine and proceeded parallel track. But in view her confidence in Jones’ Mrs. com- greater petence as a driver familiarity with the cross- ing necessity turning and the her head to the rear see, in order to we are not say as a prepared matter of reasonably law that careful duty had passenger look under facing If circumstances. she sat the driver with her back to the window or was simply absorbed in the gear discussion of the shift, automatic jury could conclude that she acted in a reasonable manner. Obviously she was maintaining a lookout relying but was on the driver. jury could find that the defendant railroad had not rung sounded the whistle or required the bell statute and the inattention or might reverie of the plaintiff have warning signals been if roused given had been so as to notify her that a train crossing. was approaching the Whether the plaintiff conformed to the standard of care *8 of a reasonable prudent passenger under like circumstances question is a jury. for the
Defendant contends that the sole proximate cause of the accident was the fact that the automobile stalled momen tarily just on the rack before it was struck. How ever, jury a reasonably could find that the failure give warning signals, if such was found to fact, cause of the collision. Noth
be proximate ing by what was needs to be added to stated this court re and; garding in Earle v. cause Lake Utah proximate Salt Co., 111, 118, Ry. 165 P. 2d Utah judgment is reversed. Costs awarded to the appel- lant. McDONOUGH, JJ.,
WADE and concur. (dissenting). LATIMER, Justice I dissent. judgment
I would affirm the of the trial court for the guilty negligence reason that contributory as a matter of law. guest
A charged negli- in an automobile is not with the gence driver, if but he would avoid the defense of negligence contributory injured by negligence when another he must exercise such care for safety his own ordinary or prudent reasonable man would exercise under like guest circumstances. Both the driver and are by standard, measured the same the conduct of the guest to meet equal standard need that of the driver.
The rule of behavior mentioned easy state, above is but difficult to apply conduct of many situations. guest This is particularly true in cases as the standards must be tailored to meet a person’s natural re- luctance to interfere with the operation of the car in which he is However, invited to ride. the difficulties involved measuring applying rod should not be used aas reason submitting all jury. cases to a There must be some standard which the trial determine, court can a as mat- law, ter of that the guest conduct of the did not meet the requirements minimum of due care. If we use the “reason- ought able man” test there to be an opportunity for the judge trial compare acts with those of *9 vague man. If he does so and concludes suppositious and the guest failed would find that the all minds that reasonable grant standards, should a motion a di- meet the he on I our of review scope ap- rected verdict. As understand whether, him, from facts we determine the before peal, judge correctly all minds the trial concluded that reasonable guest would find that the did not conform to the standards of a reasonable person. may
It I that should state the fore- paradoxical appear going then, my and after three of associates have principle differ, held the of this facts case reasonable minds to permit brought exists, I hold do not. The if paradox, is by judge about the each writes for his specifications as- is, sumed “reasonable man.” The of there- path departure fore, the which we com- principle standards pare. taught,
Experience has and I believe reasonable men know, crossings great danger. that railroad are places weight, The speed, and lack of control over stopping maneuverability of have trains fixed public necessity of approaching railroad tracks with care caution. look stop, and listen concept is not without reason, many tragedies only would be averted if requirement “look” I complied with. mention these facts for the reason I believe railroad acci- dents fall category into different from other traffic colli- sions, ordinary requires higher and that care standard of conduct might on part of the parties who become in- dangers volved in a collision. involved, Because of the duty of both the driver and the to be observant increased. Torts,
Restatement Law Paragraph defines negligence contributory as follows: “Contributory negligence part is conduct on the which falls below standard to which he should conform for his own protection legally and which is a contributing cause, co-operating with plaintiff’s bringing about negligence the defendant
harm.” *10 464) work de- of that (Paragraph The next paragraph following manner: in the conduct of
fines standard person the standard an insane plaintiff is a child or the “Unless which a to is the standard conform he should which conduct circumstances.” under like conform man would reasonable if meets she measuring conduct to determine In plaintiff’s the facts person, of a reasonable the standards permissible her, the exception with I relate are as testified woman, fully matured was a She taken from map. data hearing. good sight had She who was possessed knew occurred and the accident the area where lived in involved. She the track trains over the railroad operated her the any stress and purpose under emotional was not require travel. and the driver journey fast She did not were in a drive and proceeding out for a pleasure mid-afternoon, leisurely at The accident happened manner. just driven visibility The car had been was excellent. when crossing, marked with cross the which was over railroad ground Plain- slightly over the level. raised arms around, tiff, knew that it was the car was turned after again necessary over the track. The time element to pass over and the return attempt the first cross between knowledge having to cross a track was and the short mind. The introduced in evidence and fresh her map testimony of witnesses established that the turn-around from in the ravine was feet approximately point crossing. edge of the ravine and the from The east point crossing clearly the track would be visible to occu- which at If of the car was least 400 feet. we start at this pants crossing, roughly toward the and travel road for point track, 80 feet runs somewhat to the perpendicular possibly angle degrees. Taking at of 60 into account the direc- train, tion of travel of the car and the would be oncoming train, slight slightly away faced from the but a slight glance right to the would or a per- turn of the head the track over which 500 feet of mit her to see at least The road turns and parallels the train was travel. feet, 250-300 the lateral dis- track for approximately not than 80 at tance between the two is more feet crossing, from At a at least 75 feet point place. again road turns to the and is almost perpendicular crossing. with the track from the of the turn to point toAs the elevations on the that for topography, show map roadway feet of the ravine the 400 from there of 4 is maximum variation feet from the lowest to highest that, as between the road and point; track, greatest height variance is 4.8 feet. These ground variations are levels and do from computed height take into account the above the road of height she was seated in the car nor the of the train above *11 track, the which varied from 14 to feet. Some mention growing is made of brush on the land and the of presence rocks, might which sight, have interefered with her line of I believe the evidence is conclusive that after plaintiff, coming ravine, out of the would have an view unimpaired along of the train for a distance the of track approximately 500 feet and this distance would increase as the car neared crossing. Moreover, the she doesn’t claim to have looked at the except time the car came ravine, out the up and so her view could not have by any been obstructed natural obstacles. right
Plaintiff was on the of the driver and ain much better to see the position train it as was on approaching her side. She awake. reading, was She was not and she was not occupied in a except casual conversation. There were no to incidents distract her attention. She knew she was the approaching railroad track which she could railroad traffic. expect She further knew that the driver would have restricted vision of trains approaching on plain- tiff’s side. There highway was no traffic to watch. She makes no contention that there was why reason she of the The speeds observations. make some able not
was same, and both substantially the were train car and was the car While traveling relatively low speeds. at road, train along travelling track parallel to each in close proximity have been must automobile and engine ten and made train, up which was other. side, was down. the window cars, on her was twelve or bell, the train. from whistle, and no noise no heard no She until the track on entirely of its presence unaware was She crossing, yet at all times was on the automobile moving collision. When slowly point towards hardly had time engine it was so close she saw the she first outcry speed the impact. before make any time her at look to that one was such automobile cautionary reaching a remark before collision. would have prevented the driver hardly together, a facts present picture these Fitted safety. using her own With care for reasonable observable, readily what to see opportunity reasonable knowledge observe, with full she time to with ample danger, and without of possible was approaching place see, ar- for failure to reason or excuse apparent having of collision without ever seen the rives at the point just until While back train before impact. approaching might desirable, driving a statement from a seat be ought encouraged. guest “here comes a train” to be If, majority under these proclaimed opinion, judge facts and circumstances trial could not find that failed to use due care for her own then protection, *12 question: I this Under what pose facts and circumstances a in a car is a known passenger approaching railroad cross- ing oncoming required Certainly, to look for ? trains before overturning conclusion, ought the trial court’s we to be out able some evidence that point either made plaintiff safety some effort to see the could be made in or grounds that she had reasonable to excuse her for not look- ing. WOLFE, court, in
Mr. his opinion Chief Justice dealing decided cases with some of our previously cites guest. negligence contributory When consideration is given correctly of each of those cases facts solving However, they decided. offer little help prob- confronting they merely lem us conclu- express because guest sion the court that what the did or did not under do charged charge of that case or particular facts did not negligence contributory him with matter as a of law. If negligence contributory by is determined com- her conduct with the standards erected paring for the con- conditions, duct of a reasonable under person similar conduct of hardly others under different conditions would But, be a fair even when I comparison. to follow attempt the guideposts erected those previous pronouncements, I find conduct far short of that plaintiff’s of a expected prudent person. long ago
We discarded the duty the same concept guest. that rests the driver upon rests upon See Mon- tague Ry. Co., v. Lake Salt and Utah 52 Utah 174 P. I gone But do not believe we have previously so far guest may as to hold rely that the utterly entirely knowledge the driver if he does not have of the driver’s my It incompetency. in this opinion case we em- rule, brace this even if we do not it. adopt I believe the ground better reasoned cases strike a middle between the two mentioned extremes. While it is impossi factually ble find a case on all four’s with the present, action, I believe Supreme Court of Connecticut in a case, somewhat similar B oscar York, ello v. New N. &H. Co., H. R. 61, 63, Conn. 152 A. reasoned that con closely duct approximating charged that of contributory negligence with as a matter of law. The court in that case said: very “Because of the duty limited passenger nature of the of a guard automobile to exercise care to dangerous himself from in-
260 contributory negligence question of his operation, the to its cident few, however, are, jury. There the usually of fact for one be must the within protection so his for own watchfulness where situations passenger part in an auto upon the of care of reasonable bounds grade crossing Almost known him. approach to as to in mobile situations, in ab unanimity held in such courts have with duty resting upon to excuse, him there is a of of circumstances sence A. L. approach 18 reasonably of trains. Notes watchful for be p. page L. R. p. 1294, A. 41 A. L. R. p. 315, R. 22 A. L. R. riding was was with a driver who “In the case at bar the deceased straight looking location, was at the with conditions unfamiliar hand, deceased, watching on road him. The the other ahead before track, with of the and must have been familiar knew the existence upon crossing. He was seat the situation at the seated front coming. The the track the side which the train was view of from obstructed, particularly left was the driver side somewhat for on any deceased, degree of the had he with of care seat. looked situation, with the of the could commensurate needs have seen only twenty proceeding train. The automobile was fifteen miles at to hour, warning stop and a to the driver in time to reach- before ing track would have introduced into the new situation danger, probability element of and in all reasonable have been would prevent justifying effectual the accident. No circumstances any precautions safety failure of the deceased take his own appear. We cannot do otherwise than hold that dereased guilty contributory negligence as a matter of law. cite a few We many which, analogous situations, cases in in courts other * * *” have like reached conclusions. dealing books are duty filled with cases with the guests drivers and involved A collisions. refer- ence them would add little to either side of this dispute reading as a readily their facts shows do not build gauge a model which we can But plaintiff. the principles therein announced judge lead me to the conclusion that trial holding in this case correct that plaintiff’s acts and conduct did not approach standard of care which required him to jury. submit the cause to the I he believe say, could law, aas matter of that she acted an im- using care than one who was due rather person prudent *14 safety. for her own Justice, dissenting
CROCKETT, opinion concurs in the LATIMER. of Mr. Justice et al. v. KNIGHT.
LARSEN Cases.) (233 (Two 365.) Decided June 1951. Nos. P. 2d