*1 LAMKIN, Hubert
Appellant, LYNCH,
Sue Ann Defendant Respondent.
No. 15683.
Supreme Court of Utah.
Aug.
531 peared slowing permit that is was to him crossing. his rain- Defendant testified that it had been ing, cloudy,” it was “dark and she looked none, did pedestrians but saw and she for plaintiff prior impact. not see motorist, An also a testified eyewitness, it following and that that he was defendant plaintiff appeared that neither nor defend- other presence ant of the of the was aware walking plaintiff just kept and that impact. of until the time is Plaintiff’s first assertion of error by the supported is not verdict closely facts of this case so The evidence. in the recent case of Ander parallel those is Bradley1 holding that our therein son v. in dispositive this issue. Anderson also of negligence in apportionment of volved the regard accident and in auto-pedestrian an say: had this to thereto we right- matter who has the [N]o pedestrian have driver and of-way, both L. E. Richardson, City, Salt Lake reasonable, and proper maintain duty to plaintiff appellant. and reob- recurrently adequate lookout and L. L. Summerhays, Strong Hanni, of & reappraise the situation. serve and [Cita- Lake City, Salt respon- defendant negli- to do so is tion Failure omitted.] dent. prerogative gence, it lies within the per- to determine the of the fact-finder HALL, Justice: centage thereof. appeals Plaintiff from a verdict negligence of The issues which determined his negligence per- as 60 clearly of fault are factual compared cent to that of defendant as 40 of by be determined the finder matters to percent. credibility matter of fact.2 The witness Plaintiff, fact- province was of walking south across also falls within Second South discrepancy Street near intersection When there is a finder.3 witnesses, the with Edison City. testimony Street in rendered Salt Lake The is the evidence is decide which account dispute fact-finder must as to whether or not must appeal, we he was Then on within a he most accurate. cross-walk when light in the most favorable defendant, struck review the facts an east-bound motor- party.4 prevailing ist. The accident occurred in middle of the three east-bound lanes traffic on of or not dispute as whether Second South Street. of in the crosswalk at the time plaintiff was approached testified that not the critical issue because as he the center need not necessari Second that he South allocation Street physical at oncoming observed location ap- ly upon that it turn traffic but 3. Gittens Utah, Lundberg, (1979). P.2d 1. 590 3 2d 284 P.2d Utah 339 Perry, 2. Coombs v. 275 P.2d Utah 2d Supra, 2. footnote identical, event, time of the to those set any collision. In there is if not in substance substantial support evidence to a conclusion forth in J.I.F.U.6 The first defined that at the time impact plaintiff cross- duty pedestrian of a before and while outside the crosswalk boundaries. The in- street,7 duties ing a defined the the second vestigating officer and defendant both so driver,8 the third pedestrian of a and a *3 plaintiff testified. But even if was within defined the of care for a motorist standard the crosswalk boundaries at the time of the pedestrian and a with and without impact, jury the reasonably still could find instruction cov- right-of-way.9 The fourth plaintiff percent 60 negligent. It awas right-of-way pedestrian the ered of a dark, cloudy evening at the time of the traffic, specif- crosswalk over vehicular and accident, plaintiff and wearing was dark ically right defined his to assume traffic pants jacket. and a dark The believable stop would and not enter the crosswalk. testimony plaintiff directly that never did We foregoing conclude that the instruc- look the direction of defendant’s vehicle represent tions a fair statement of the re- but only relied peripheral his vision. spective pedestrians duties of drivers and Plaintiff himself testified that the east- entirety, when read in their and as (defendant others) bound vehicles were whole, (as jury appropriately a the was only away about 30 feet but that he made do)10 empha- admonished to that no undue the judgment that he could make it across present prevented jury sis street. The was which further observations of the eyewitness were “it giving impartial didn’t seem like from the case an and in- (plaintiff) Mr. looking, Lamkin ap- formed consideration. proaching cars get didn’t seem to atten- his Plaintiff’s second contention of error in tion, and (de- he didn’t see the Fast-back regard jury to instructions is that the trial automobile).”
fendant’s properly court failed to state the law as to light In evidence, jury of the could the duty of a driver inasmuch as it refused reasonably plaintiff conclude that was 60 give pertaining to proposed his instruction percent negligent percent and defendant 40 imposed upon to the standard of care a and it proper was therefore for the trial motorist. deny court to any recovery5 and to subse- of the Our review record reveals that no quently deny plaintiff’s motion for a new objections jury the court’s whatsoever to trial, a discretionary ruling which we deem plaintiff. lodged by instructions were appropriate under the circumstances. However, pursuant procedural stipula- tion, plaintiff following excep- took the challenges propri Plaintiff next ety tions retired to jury of the thereto after the had He instructions. first con tends that duty pedestrian of the was deliberate: overemphasized. Our review of the instruc general I exception take to the failure given tions fails to bear out his contention. give Requested Plaintiff’s Instructions specifically those instructions with
Four
given (Nos. 10-13)
instructions were
regard
pertaining
to the effect of violation of the
respective
to the
duties of mo-
pedestrians.
similar,
torists and
designed
Vehicle
where it is
Each was
Motor
Code
Miller,
559,
Comparative Negligence
5. Pursuant
to Utah’s
with Sant v.
115 Utah
9. Consistent
Statute, U.C.A., 1953, 78-27-37,
seq.
(1949).
et
jury was properly informed as to the stan KINS, J. dard of care. MAUGHAN, (dissenting). Justice
Plaintiff’s final assertion of error is
the trial court failed to instruct
reasons,
following
For the
I dissent.
jury as
legal
consequences of its
multiple
Plaintiff suffered severe
frac-
apportionment
negligence.
of
hospitalized
and was
months. He
tures
point
This
is raised for the first time on
leg at the
sustained a later fracture of the
appeal and hence
upon by
was not ruled
holes,
in
point of the bore
which were made
trial court. Consequently, we do not con-
injured
process
repairing
the bones
sider it on appeal.15
suffered,
and will
this accident. He has
The jury verdict
is affirmed. Costs to
suffer,
injuries he
pain
continue to
from the
defendant.
permanent
a
total dis-
sustained. He has
consequence
this
ability
as a
of 20-25%
CROCKETT,
J.,C.
concurs.
jury found the
Initially,
accident.
WILKINS,
(concurring
Justice
general-
damages
general
plaintiff had suffered no
ly)-
temporary
pain
suffering,
no
or
I
past
concur
loss of
or
generally
permanent disability, and no
but add a reservation.
The majority opinion
earnings.
jury
The
was instructed
response
states in
future
12. Utah
before
Rules of
noted
this issue was
Civil Procedure.
15.It
is to be
Light,
in
v. Utah Power &
this Court McGinn
Utah,
Employers’
Liability
(1974)
quoted
Mut.
Ins. Co. v. Allen
and we
nu-
an award of One general Dollar for dam-
ages. my view,
In such a determination indicates the was actuated either
by an improper motive, bias, prejudice, or law,
misunderstanding of arriving at
its verdict of One general Dollar for dam-
ages.
Plaintiff contends that failure to instruct
the jury legal about the consequences of its leads to a
harsh and unfair result. This failure to so
instruct, according plaintiff, is inimical to justice interest of disap- and should be
proved by this Court. Plaintiff concedes he
did not specifically request such an instruc-
tion, but gesture such a would have been
futile. In McGinn v. Light Utah Power and
Co., Utah, 529 (1974), this Court
ruled it prejudicial if, error in a com-
parative negligence case, the trial court in- Allen, Ray, Don B. Quinney & Nebek- comparative structed the case, er, City, plaintiffs Salt Lake appel- the trial court instructed the as to the lants. effect or answers, fact-finding its special verdict would have on the out- Stephen G. Crockett of Martineau & come of the case. urges this Court Maak, City, Salt Lake for defendants and to reassess the ruling. McGinn I would do respondents. so.
STEWART, Justice: appeal This is an judgment from a en- tered imposed trial court which sanc- plaintiffs’ tions for respond failure to ade- quately interrogatories. plaintiffs (1) claim court trial abused Charles R. KENNEDY and Rebecca Z. discretion in granting judgment a default Kennedy, Appellants, Plaintiffs and Rosenberger to M. S. on his counterclaim against them because their in- answers to terrogatories substantially completed were INDUSTRIES, INC., NEW ERA and M. detailed, (2) the trial court Rosenberger, al., S. et Defendants granting judgment erred in the counter- Respondents. taking support claim without evidence in No. allegations judgment on which the Supreme based. Court of Utah. We do not plaintiffs’ reach the merits of
Aug. 30, 1979. claims because the case is not properly be jur fore this Although Court. the issue of party, isdiction was not it raised either prerogative, our sponte, sua to refuse to