*1
spirit
violated both the letter and
first time It was nor Defendant and not tried presented any to establish that evidence No. 8547. purposed purchase contracts were to or Supreme Court of Utah. did, control fact, violate the rent law. be, plaintiffs may suggest, July 2, well While 1957. deny can relief mo-
that a court on its own in a reveals the
tion the evidence contract,5 never this would
illegality of clearly such fact were es- unless
be done observed that is further to he It
tablished. should have known all knew or respect origin facts with posi- is in
the contracts she assumed and no advantage
tion to claimed take ille- If now asserts. her contention
gality she she, prevail, as- illegality
as to were to contracts, might
signee find of such in the Avalon
she likewise has interest
Apartments.
Affirmed remanded to fix
attorney’s appeal. fees for the Costs to re-
spondents.
McDonough, j., wade, c. HENRIOD,
WORTHEN,
JJ.,
concur.
LeRoy,
Sinnar v.
44 Wash.2d
about 70 However, impact death at the p. h. car was m. between 10 and 20 *2 The familiar with inter- was section, many having highway driven times. Strong, Salt Hobbs, R. Gordon Lee W. appellant. City, for
Lake nothing Plaintiff admitted that she saw O’Connor, Salt Allen, Wm. Syme Preston the car in C. which Mr. was killed J. respondent. City, appeared for directly Lake in front of her a dis- at
tance of 20 to 30 feet. This was the though plaintiff’s even own who witnesses HENRIOD, Justice. were following about a block behind had complaint Appeal from a dismissal difficulty whatever in observing and watch- with Affirmed case. accident in an auto ing the occurrence, including whole bot- was The dismissal defendant. costs to approach decedent’s car’s high- toward the contributory negligence. on tomed way from a considerable along distance north plaintiff drove night p.11 m. one At Draper Road, through stop sign, into highway, di- a four-lane p. h. on at SO m. the intersection and on and to the collision island, on bordered and by a 35-foot vided fatality. collided lands. She farm by open side each Under who, decedent, with we cannot but driven a car with conclude that on, onto either looked drove headlights failed to right obvious, see the approaching failed look road from a all, and, driver, admin- a matter whose law The Road). negligently (Draper here, contributed to her injuries was killed. own defendant istratrix death of riding was another had been motorist. which other in The p. negligent h. stances of traveling at 40 m. about failure be look or to estimated see that which is and did there to seen, the facts were no stronger than here, down those stop or slow concluded, traffic we have westbound here, control we do designed to contributory a mat there ment on Draper the north side of the South recovery.1 precluded ter law Road directly sign and there- west strip between south- the north and bound traffic paved connecting lanes is McDonough, j., and c. crockett north and southbound together. lanes’ The WORTHEN, JJ., concur. . Draper South Road west does continue
of Highway 91, private but a does so road continue the north Utah State side WADE, Justice. Prison grounds. So traffic at this I dissent. might enter the northbound lanes traffic from the west as east, well as from- opin- prevailing in the The facts as stated required keep for lookout ion, though very meager, in accordance traffic from directions. bo.th evidence. my understanding with Plaintiff However, neces- additional facts are north in the west traffic lane my sary about 50 to understand contentions. hour. She acquainted highway, about 11 o’clock occurred collision *3 about 600 feet south of the intersection a 8, 1954, the intersection night on October gave road sign warning to northbound traf- South Draper Road 13800 of the South fic that such intersection was near. As she 91, Street, Highway or U. S. and State approached intersection, this plaintiff’s view Salt approaching through highway main to the east was unobstructed for a con- Street at City from south. State Lake siderable distance. Decedent came from highway. The a point is four-lane into east this intersection stop- without are traffic lanes and northbound southbound ping, where the collision occurred. traffic inside strip. The by a 35-foot divided We will first review the law covering this strip are dividing adjoin the lanes which situation. 24 wide, lanes and the outside 16 feet south- wide, north making both the feet summary judgment A proper is only if width. 40 each
bound traffic lanes
depositions
pleadings,
and admissions
intersects
Draper Road
The South
show
is
genuine
there
no
issue of
About
east.
Highway
through
91
facts and
moving
material
party
pave-
highway
judgment
to such a
through
entitled
as a
east
30 feet
matter
559,
Utah,
1047;
Miller,
son,
254 P.2d
115 Utah
206 P.2d
Wilkinson
v.
v.
Sant
Co.,
45,
Oregon
110,
Whited,
L.
719;
35
Utah
Short
R.
Utah
v.
Cederloff
Mingus
466; Covington
777;
Olsson,
Carpenter,
v.
P.
P.2d
495;
Thomp
have not been alerted to the fact dece- Respondent’s (1) attorneys argue that if dent was right-of- per hour in driving SO miles way. propositions The first of these will *6 traveling the west traffic for cars lane be discussed later and proceed I will to only north traveling and the decedent was discuss the second one.
10 per past miles car hour he drove his as already As mentioned, place where the stop sign, plaintiff’s travel- then car was stop sign located, under the facts here ing five car. times fast decedent’s shown, require did not decedent to Since the northbound traffic lanes are until he reached the east edge of feet wide east stop sign and is 30 through highway pavement. Until he of the edge through highway east of the reached point that his driving did not tend pavement, they argue that the decedent’s to alert to the fact that car decedent passed would travel 70 feet after it was not going stop. to especially This is stop sign, plaintiff’s and during that true after dark with the facing not car would travel five times feet or plaintiff but facing the car approaching the feet before courses would of their cars through highway so that she would un- be They cross. claim made that she could have able to see where it actually located a complete stop speed at that rate of within and with decedent’s car traveling as slow feet, leaving her 166 feet per 10' Also, hour. while plaintiff clearly collision. If have was traveling in the west lane for north- been alerted that decedent was not bound traffic she traveling was not the full to and when he 40-foot width of those two northbound traf- still had 70 feet to travel the col- fic lanes west edge east of the lision decedent’s car traveled that dis- through highway pavement. The only hour, tance at the rate of per 10 miles reasonably find that she was traveling in the I agree argument. However, then with this center of the west lane, northbound traffic argument assumes at least two facts which feet wide. require These facts which justify the evidence does not con- a reduction of the distance that decedent’s favorably plaintiff. strued Such con- car would travel after should have struction of the evidence and the reasonable any event been alerted that decedent was therefrom, require would inferences a find- not the right-of-way by 30 decedent’s was making ing (1) feet, between the distance sign speed past when it went sharp reduction (2) edge pave- had she stop sign, observed the east all caution foreseen width would feet, half ment; eight result, are lane, leaving injury likely would . traffic northbound the west minds upon matters travel car to only 32 feet for properly may they differ. As travel the course point where * * *” jury. distance If such cross. cars would two hour, and 10 miles only col- possibilities were traveled avoiding her times traveling five plaintiff’s con- complete stop be lision without a will 160 feet only fast, travel However, would cir- she sidered later. cross. would courses point their finding cumstances she able would facts proximately Under such contribut- within complete car to bring her causing injury ed in be reason- her to the As able, she traveled. distance holding against as a matter and a aon justified. where the of law on a driver aware highway should be con- There still another reason for the Robinson,7 we Hess v. stop, in going to clusion that holding said: negligence proximately contributed to “ * * * injury justified. as a matter of law is not was com- ambulance If the *7 per only If decedent’s car traveled 10 miles hour, wit- as one per SO miles at ing edge hour from of east the to a the suggest testified, might it ness pavement point impact, of to the ambulance the that man reasonable suggest would down that that had slowed least he stop, or at not would probably waiting pass he and was for her to before dan- apprehension a raise speed of travel. drove into course Such hand, as defend- If, the other ger. plaintiff would indicate to had she seen de- com- testified, ambulance the ants car sooner that driver intended course cedent’s the (the per hour miles only 25 prudent the and not cross ordinarily an upgrade), being plaintiff’s course travel until had had she the driver that may conclude man passed. part action on Such the would of drivers control and car a stop sign. entering is not unusual. by law required as especially justified were conclusion This the circumstances what As to fact plaintiff’s intersec- of the some of view entered the plaintiff testimony indicates that entering under whether decedent’s car was tion, per than an slower act hour when ordinary prudence first saw it in front of her. she person this a re- 64-65, Robinson, 512. Hess See testimony attorney if barely moving plaintiff’s just stated it “was gard she said other This testify Later two witnesses would to. still.” she estimated standing not statement, record, part a per although hour. of the speed at 10 to 20 miles car’s other by is relied on counsel for both crawl across her course did other If the opin- defendant as in moving, definitely prevailing it as well barely sug- just ion, I it though so shall treat a waiting driver was her to it were for gest that part By such statement proceeding across her course. record. pass before witnesses speed dis- estimated decedent’s car was estimates of In all of these hour, keep they about 40 miles must in mind that 300 feet tances we intersection, east from estimates, did not merely particularly or slow down sign very 'inac- and collided might estimates of only with plaintiff. the northbound car of Such curate because she saw other car testimony clearly gives obviously picture fleeting moment when she being decedent’s driven through terrified "faced. this danger imminent stopping without or slowing down quotation See Robin- from Hess v. above prior to the collision. Although this testi- son, supra. case, Also in Mr. Justice mony with conflicts own tes- Wolfe said: speed timony .plaintiff’s as to the car at “ * * * as- Whether could he collision, the time of I think jury up from view 31st Street certained reasonably find could from this evidence the ambulance that decedent’s car did not speed reduce its what or at I think collision. it, have so acertained if he could against admitted a fact interest, of all, so it was late have done too which she had knowledge, definite stop, strictly, under the facts reasonably could not find facts more favor- jury. for an He was on able to her than her although admissions rely He could ambu- arterial. other But, witnesses testified. since stopping before he reached lance plaintiff only other saw the car for a fleeting until he was or should have moment great danger, compared definitely been aware that opportunity of the two other witnesses going to do so.” speed estimate *8 car, other I (2) is a think plain- jury distinct in reasonably There conflict could find their testimony in deposition testimony tiff’s her and the was more than accurate hers. quotations pages 8. See from above Hess v. Robinson at note of 109 74-75 Utah, page 516 of 168 P.2d. that sufficient before distance he entered almost
Under identical just barely intersection so Hess that his was in assuming, court this we are now moving, only a or traveling unanimously to supra, that Robinson, held per miles collision hour at time of the presented. question of fact testimony. in per plaintiff’s hour accordance with 50 miles plaintiff traveling If Under such were dece- we conditions the fact that traveling and the decedent it speed dent’s car was reducing its before plaintiff that further conclude to in- definitely entered the the fact would observed, to became alerted have or dicate to to going car was decedent’s it was driver of when yield right-of-way her the or slowing car had it in- courses under control and point their as far from yield tended to plaintiff would or to feet, right-of-way still would cross This her. Under these it point. circumstances would within 125 feet of that then be practically impossible which re- within for to become is far feet short stopped her aware that other car to argues could spondent ordinary stop impossible for to in I think it car. just accuracy Certainly she could avoid the collision. estimate driver a we cannot hold will heed these circum- a point driver what away stances she was sign and that proximately cross a matter of law cars’ courses contributed two where the causing injuries. pre- be ex- both as far as would be opinion vailing that the other and Mr. to the fact Wolfe’s be alerted pected to Justice case, concurrence in the right- supra, Hess her the it in out, clearly pointed Mr. of-way. Wolfe’s statement though even Justice Robinson, opinion in Hess v. concurring suggestion there that the ambulance point if defendant “even at supra, that which went was re- necessity exercising him the upon thrust speed, ducing its that if the ambulance was jury should action the quick choice a traveling at the rate of 25 miles hour emergency judgment into factor take clearly presented jury question. In that he was determining whether account respect case is much stronger in favor equally appli- contributorily negligent” jury question than the facts were position in this case. cable approach- for the Hess while reducing intersection was speed its which I fact situation will last (3) bring car almost to sufficient commenced to decedent re- is that consider collision, this would indicate that per hour for speed from 40 duce his *9 the driver thereof intended to crossing course Obviously car. of the other driving
clearly indicate to right-of-way. foregoing each of the fact
From situations presented ques- that this case
I conclude Any jury. of such
tion for the one situa- require be sufficient
tions would a sub- jury. So I
mission to the conclude that presented the evi-
dence.
Ed. B. SHRIVER et BENCH, City Recorder, Provo
I.G.
Defendant.
No. 8678.
Supreme Court of Utah.
July 9, 1957.