*1 MARSHALL v. OGDEN UNION RY. & DEPOT CO. August 31, (221 868) 7407. Decided 1950. 2d
No. P. *2 Error, Negligence Appeal S., as of claimant and Sec. 1763. See C. J. 8 recovery, injury operates L. 47. proximate 92 A. K. as bar cause Jur., See, also, 38 907. Am. Dwight Rawlings, Black, Black, Wallace, and Roberts & appellant. King, City, for all of Salt Lake L. Thompson, Byran Miner, Leverich, TJ. B. A. M. P. H. Coray, City, Lake for Bronson, all of and Howard Salt J. F. respondent.
WADE, Justice. appellant herein, 1948, Marshall, March, filed John D.
In Ogden Railway respondent against Co., Union suit herein, working injuries personal sustained while for porter Pacific Railroad Co. chair car the Southern a for Ogden, passenger depot respondent’s Utah. At July, 1948, verdict returned a trial of the case in damages general $8,000.00 in Marshall’s favor damages. special verdict set aside This $500.00 granted. judge a new trial the second trial On a verdict of no cause for action. From returned judgment thereon and from the order of verdict granting judge appeal a new trial in the first case this brought. morning accident, 1947, 19, of the June the train On standing worked was on track No. 8 which facing depot. respondent’s north run tracks general northerly-southerly direction. At about 8:30 that
163 morning, placed step box in front of Marshall had 4 cars north entrance about or 5 to his chair car which was standing train, south of beside the head car of and was waiting passengers it with his when back to the train being respon- propelled he was hit a truck one of employees dent’s 8. Track between tracks numbers 7No. east of 8. track No. Between these two tracks platform approximately there is a Ex- feet width. tending platform posts down the center of this are called posts” support canopy plat- “umbrella over the particular morning form. placed On this a truck be- posts tween the umbrella south door entrance at standing. which Marshall was This truck had its south against post slight end and was at a northwest *3 diagonal. handling freight The trucks were used for eight long, were about feet three feet wide and about two high. and one-half to three feet The trucks each had four tongue which, metal wheels and a in used, front to when jitney attached a three wheeled in which the driver sat propelled place the trucks from to within the depot.
From the respondent evidence most favorable to reasonably could have found that as the driver of the approached and truck stopped Marshall he and re- quested Marshall to move over plat- to the east side of the form so, but that indicating Marshall to failed do that there plenty pass; of room for him proceeded to that as he pass watching he was Marshall and turned out his truck and the corner of his truck struck the truck caus- ing swing against his truck to Marshall and the re- car sulting injuries complained of.
Appellant complains granting first the court’s a new argues trial and doing. that it abused its discretion in so At testifying the first trial extent injuries of his said had been out of work for about
164
May,
injuries
1947 and
days
44
these
because
had been
case he
1948,
the trial of
a few months before
trial, respondent
After the
re-hospitalized for
weeks.
two
an
May, 1948, appellant had been
that in
herein discovered
days.
trial
The
hospital
for
patient at
out
the motion
on
affidavits
after
advised of
court
taking
because,
granted
into con-
it
after
for the new trial
after
presented
these affidavits
sideration the facts
recalling the
studying
transcript of the evidence and
put
apel-
had
appellant herein
emphasis counsel for
weeks,
hospital
two
for
lant’s confinement
to the
unduly
influenced in
opinion
damages
general
awarding
special
because
excessive
hospital
appellant’s supposed
confinement
just prior
trial.
two weeks
granting
denying
is
a motion for a new trial
or
of the trial court.
within the sound discretion
When
grants a new trial we
not disturb its action
trial court
will
manifestly apparent
has
unless it
the court
abused its discretion. Abuse of discretion does
when
the court’s
occur
there is a reasonable basis for
probability
action and there is a
that a different result will
58;
136;
Utah,
Moser Z. M. I. 114
197 P. 2d
ensue. See
v. C.
40;
King
Co.,
Utah,
v.
R. R.
Appellant complains giving further of the Instruction assigns prejudicial No. 7 and Appellant error. does not claim this instruction is an incorrect statement of an principal giving abstract of law but asserts its to the warranted the evidence. The instruction reads: may perform duty “You are instructed that where one in either of two ways, dangerous, one safe other and with full that one performing duty method of is safe and the other and with opportunity adopt, to make a choice as to which method he shall volun- tarily dangerous method, part chooses the such conduct constitutes negligence. “Therefore, you preponderance if find from of the evidence plaintiff, Marshall, approach case that John D. warned stepped tractor and that he could have onto the chair car or could stepped equal stepped
have over the east with ease or could have any position safe, other which was chose to remain in a dangerous position knowing guilty the same to be then negligence, negligence proximately if such contributed to cause the any injuries accident and he claims to have suffered cannot recover and ” you must return a verdict for the defendant ‘no cause action.’
Appellant justify contends that the evidence does not giving dangerous way of an instruction of the or danger- since not in a argues ous when the accident occurred. He because there was a feet, distance of nine between the chair car posts and the umbrella where the truck was and since this truck was three about feet wide there *5 passed to have jitney truck and plenty of room for Also, appel- cornering. since standing without truck only oc- he was the chair car close to lant was away that car and cupying space of from few inches only dangerous position. It was not in a was therefore swerving jitney agent negligence respondent’s apel- the accident away appellant caused from which anticipate reasonably person prudent could as a lant dangerousness of the negligence which caused such situation. agree appellant’s contention. inclined are
We nothing which evidence from There was that there that could be drawn reasonable conclusion way performing a was a safe and dangerous way negli- voluntary choosing of the given gence instruction as con- as matter of law. The jury concept. should have erroneous been this tains all the facts and whether under instructed determine appel- to them the evidence the disclosed circumstances reasonably person. prudent not acted as a lant had or had reasonably might that a could have believed It well be appellant was at the time that the situation in potentialities the accident had that reasonably prudent person under similar circumstances appellant as would have acted did. Under the court’s in- finding. precluded from so struction giving prejudicial follows that this instruction was error.
Appellant further contends court erred in re- fusing give an instruction on the last clear chance. morning
Appellant
testified
on the
of the accident
approach
of the
was not aware of the
and truck
pass
just
going by
him and
as
until it started to
then
it was
testified,
him he was hit. The driver
truck
controverted,
was not
he saw
Standing by
approached
car
him
*6
kept
hitting him,
atten
in order
that his
watch
to avoid
any partic
pay
appellant
tion was on
and that he did not
standing
he came
ular attention to the
truck. That as
sure to
close to
he would be
swerved so that
appellant,
avoid
his truck cornered
as he did this
standing
such a
truck and the accident occurred. Under
state of facts it
was not error to refuse to instruct
on the last clear chance doctrine. The driver of the
appellant’s apparent
attempted
peril
was aware of
and he
by swerving
away
avoid
the truck
from him. Under
circumstances,
agent
respondent’s
these facts and
while
may
guilty
negligence,
have
presented
been
he was not
with a last clear chance to avoid the accident. This doctrine
contemplates a last clear chance
avoid
the accident.
only possible
Here his chance was
but
clear.
For
expression
court’s latest
of when the last clear chance
applies
Bingham
doctrine
see
Ry.
Andersen v.
& Garfield
Co.,
197;
117 Utah
Reversed. Costs to
McDonough, j., concurs.
WOLFE, Justice. My concern,
I also, concur. para- main with first graph reading: of Instruction #7 “You are instructed may perform duty ways, one in either of two one and the other with full one method of is safe and the dangerous opportunity other to make a choice to which adopt, method he shall chooses dangerous method, part such conduct on his constitutes negligence.”
This instruction poor suffers not from a choice of words, wrong concept. from a
Certainly required it would prescience have part of Marshall to know remain posh in his handle sweep subject him to
tion would stationary “cornered” and which which was truck dangerous situation. moving not involve truck. did “risk”, and “un- “danger”, jeopardy”, “Peril”, “hazard”, containing connotating intrin- situations safe” are words Certainly degrees potentiality harm. sically various dangerous intrinsically nothing there was here measured was unsafe But Marshalls situation. Many subsequently happened. inno- the events Almost that test. from be situations would cent *7 injury produced an any a events chain of situation of what might in view judged to have been be hindsight might demonstrate. happened. At least so judgment of the driver in But the manifested remaining at his jitney, a Marshall’s there was risk attendant the risk it could have been station but certainly a narrow but not the driver’s traverse actually happened. in the manner in which it of the accident going happen it he the driver knew was For if negotiate attempted presumably pas- have the would not sage. Assuming give the did the “dan- not word gerous” meaning contingent the the of “some instruction interpreted prospect”, the instruction to evil in mean warned that there was an Marshall was unsafeness about his which could have been he eliminated had changed position, chance, he but that chose take the injured, consequently instruction and was the embodies wrong concept. succinctly opinion This stated the LATIMER of Mr. Justice as follows: “The test to deter- plaintiff’s conduct is whether mine there were safer places him, which could been selected have but rather whether or not under the facts and circumstances known reasonably prudent person.” to him acted as agree Therefore, I prejudicial that Instruction 7# was duty imposed the measure of because on the required the law. not that LATIMER, Justice.
I concur. my giving opinion,
In of instruction No. 7 erron- prejudicial requires judg- eous and and a reversal of the reading through suggests why ment. A record litigation. instruction in this was used gave following In the first trial portion the court jury: of an instruction to the “You are instructed that where an has two employee ways of
an act in the course of his employment, the exercise of reasonable danger- care would have perceived the one way safe, other ous, owes a to ths positive employer pursue method, and any departure from the path will safety prevent his recovery.” (The phrase original crossed out inwas instruction jury.) but was not read to the subsequently
When the requested by instruction was defendant, paragraph the first was tailored to eliminate employer-employee relationship appeared following second trial form: “You are instructed that where one may perform duty in either of two
ways, one safe and the other with full that one *8 of method the is safe and the other and with to make opportunity choice as to which method he shall adopt, dangerous chooses the such on method, conduct his con- part negligence.” stitutes difficulty tailoring with concept the is that the can- not be fitted to the of this facts case.
Assuming employee that an must select a safe method doing work, I concept any do not see how that has application to the facts of this case. Plaintiff was not employee an of the defendant and the method he selected to do his long work is no concern of soit as he used due safety care particular for his own accident. In this instance, plaintiff had method, not selected a employing well-recognized rather he was mode assist- certainly one ing passengers off the cars and on and Even if hazardous. not be characterized could concept with the grant to deal intended we that the court work, the in- choosing place employee an unsafe an place the the reason is still erroneous struction by defendant the acts until made so was not unsafe all reason- danger obvious then the was not so and even dangerous. persons conclude it was able would why in- any the usual perceive reason I am unable to sufficed in negligence not have cases would structions contributory negligence all, this cause. issue After by simply remain- plaintiff whether part of on the circumspection ing post with care and at his he acted due language. simple could have been couched this issue plaintiff’s not whether conduct is determine The test by places been selected which could have there was safer him, or not under the facts and circum- but rather whether reasonably prudent known to him acted as a stances person. prejudicial for the follow-
I the instruction was conclude ing reasons: immediately prior to the acci-
If we review incidents by appeared plaintiff dent, place selected dangerous this condition hazardous or if it became either brought by of the truck. Plaintiff the driver about apprised truck was to be driven of the fact standing; and, in- place while past he was where warning to be obser- formation amounted movements, truck’s in view of other facts vant circumstances, hardly suggested fast remaining injury likely in a would occur. moving Subsequent events established that he was trailer, only chargeable but he struck ordi- degree nary care whether he exercised that of care is *9 by hindsight. not tested questioned suggest
The instruction seems negligent plaintiff could find the because dangerous perilous place; in a he knew existed; dangers knowledge voluntarily hazards he chose remain. do The facts justify theory. previously the submission of such a As suggested, if the was made so driving agent of defendant’s and when that condition plaintiff little, any, opportunity was created had if select place. Moreover, suggests theory more secure portrays a distorted version of the facts. person as a with full of the situation given selecting who has been choice of between an island safety grave danger. and a jurors are they then told that if believe he chose the latter I cannot recover. voluntary can not find in the record a danger. choice of a known
PRATT, J.,C. dissents. v.
STATE PETRALIA. 28, August No. Decided (221 7408. 812). 1950. P. 2d