*1 ROGERS. v. MORBY (252 231.) January 8, P. 1953. 2d 7698. Decided No. *2 S., Vehicles, duty See 61 C. J. Motor sec. 526. Motorist’s toward bicyclists. Jur., Automobiles, 184; 5 Am. sec. 172 A. L. R. 736. Snow, Jensen, Jensen, Jensen & E. Robert C. John R. A. Burns E. Hayes, City, and Zar all Salt Lake for appel- lant. Sheffield, & Sheffield, Dean W. A. Ralph Sheffield
Sheffield, all City, Lake Salt for respondent. justice. McDonough, brought
Plaintiff damages this action to recover for the resulting death of his son from a collision between an auto- by defendant, mobile driven bicycle and a ridden de- judgment ceased. From a on a verdict in favor of plaintiff, defendant appeals.
At approximately 4:45 defendant, m. on p. 1950 April accompanied driving his wife was north on the east side East, 18th at about 5100 South in County. Salt Lake road at this point runs north and south and lies between two gently small sloping towards north but almost knolls — The paved portion accident. at place level has foot with six shoulders feet wide is about road known as Cottonwood A canal this point. curves at no along This canal of the road. west side runs Creek feet with eight five to deep six to ten feet wide about bridge leading lane to a farm tie a A railroad flat bottom. accident. at the approximate canal crosses clear, good being Driving were the weather conditions visibility good, dry and sparce. road traffic above, he described spot defendant approached
As bicycle north also deceased on proceeding observed highway. In de- attempting pass on the east side between the automobile and ceased collision occurred injuries resulting boy’s bicycle deceased. The fatal *3 highway body and came to east rest propelled bridge two of the north end of the wooden approximately three from west road. or feet side After car collision the defendant’s northwest into proceeded eye creek. There were no to the witnesses accident except wife. trial defendant asked for a directed Upon verdict judgment notwithstanding verdict, a both which were denied the trial court. Defendant contends that his mo- granted. tion for directed verdict have should been grounds Basically the for defendant's are three appeal in number:
(1) The evidence is insufficient as a matter of law to finding a support on part defendant. (2) That decedent contributorily aas matter of law.
(3) That the last clear chance doctrine is not applicable in this case.
We will of these dispose points they the order are stated. grant order for a court to that in
(1) is well settled It judgment a not- request verdict for a directed a non-negligence grounded withstanding on the verdict defendant, no evidence the record must disclose requesting against so which reason- the party upon guilty him minds could find able
charged. here, then, The issue was whether the record any evidence which the could disclosed have upon negligence. guilty of found the appellant according It is true that to defendant’s evidence his speed any at time did not exceed 30 miles hour and that such per to be reasonable under the speed appeared circumstances and condition of the road. The record also discloses that boy was observed defendant and that defendant tes- gave warning through he boy tified to the the medium of horn at the distances of 200 feet and feet behind the Furthermore, before the accident occurred. the record positiоn establishes the of defendant’s car in the canal after the justify accident which would jury’s conclusion that defendant did attempt quick avoid the accident action to the left. There is also testimony defendant’s effect that the sole cause of the accident was the making quick deceased in and unheralded turn to the left into the path defendant’s car. minds, however, Reasonable justified would be in in-
ferring negligence on the part of defendant from circum- stantial brought physical facts also out in the record. For example the lack of skid or brake marks justify an *4 against inference “quick defendant’s purported action” to avoid the accidеnt. The final position of the automobile in the canal justify finding a that defendant was trav- eling faster than testimony his indicated and that such speed indicated his lack of control over the automobile at the time of the Furthermore, accident. testimony the regard boy’s injuries to the would justify finding a that the deceased great was struck with force “just and was not The fact wife testified. and over”
tipped damaged bicycle of a consisted injury the extent injury the front no guard was that there mud read finding boy did not justify a that the bicycle would the contended, was but rather struck was defendant as into turn minds could reasonable to this In addition from behind. the of deceased’s position impact frоm the point find any had sudden turn but made body had not the high- gradually portion onto the west veered over way before he struck. that acts of or novel principle
It not new cases, many Certainly, in may by circumstances. be proved eye only are hav- witnesses parties where particularly ing action, are an interest such circumstances may which certain facts be dis- means In cir- covered. such cases it is that such proper jury evaluated cumstances should be in whose prov- testimony ince to believe or disbelieve the lies power evidence, witnesses, to observe the demeanor of the and to draw such reasonable conclusions from the whole record as be warranted.
We are opinion reasonable minds could find negligence on the of the defendant part from evidence in the record. The trial court therefore letting did not err in of defendant’s negligence go under the evidence. assignment
Appellant’s second raises here- tofore expressly rely- considered court. this Appellant, ing upon Code, Motor Vehicle U. C. A. 41-1-1 et seq., and upon contention that the record shows that deceased made a signalling sudden turn without or ascer- taining whether it was did, safe turn at time he maintains that contributorily negligent deceased as a matter of law and hence recovery. is bаrred from This
545 objection 12 to Instruction is raised appellant’s that which instructed boy years age up is the same standard of care “a of 13 of not held adult, he is assumed to have the same consciousness as an but danger judgment ordinary reasonably prudent
of and the same as an * * * boy and that it be for an adult of 13 duty Code, statutory imposed to violate the the Motor Vehicle and year with- it would for a 13 old to make such a turn be complying the standard if the should find that a rea- out with danger sonably person appreciate prudent and of 13 would know signalling.” trying to make such turn without generally to us is whether the presented thus problem age rule as to consideration an infant’s accepted determining neg- of his capacity ligence establishing negli- is to over the rule prevail gence statutory duty law as matter of violation of a upon safety. for his We believe that promulgated it should. Freight Lines, 129,
In Nelson v. Arrowhead 99 Utah 225, 229, recognized generally P. 2d we noted that it is ordinarily age years a child under 7 conclusively is pre- guilty contributory negligence, sumed not and between ages 14, showing of 7 and contrary, absence of to the generally infant is assumed an not to have the same con- danger judgment avoiding sciousness of it as an adult, 14, but that above the in the absence of show- ing contrary, charged generally an infant with having attained that which development him imposes upon degree the same of care an adult. In the Nelson case brought action was for the minors, death of two one 16 the riding other who were in an automobile in such man- ner as to obstruct the view and control of the driver in violation of the Motor requested Vehicle Code. A instruc- tion to the effect that required “each minor was degree to exercise of care and persons age, caution which capacity experience like might reasonably expected to exercise” *6 held that this refusal court. We by the trial
was refused directly consider did not but we error not reversible was in the Nelson statement us. Our question now before question regard was to the present case requested improper instruction was nor not hold that “We do give might to it. What we do hold is that it not have been better given, and the instructions the failure of the of the record in view give requested instruction is reversible error.” court 346, 230, Johnson, 233, 166 P. 109 Utah 2d In v. Graham stated, involving year injury a 13 old we assumption knowledge “We with not but start playing Gary 5321, in the street in violation Sec. Ordinances, City, Lake Revised Salt 1944”. However, question now before us was not raised directly by and was not further nor briefs considered this quoted merely court. statement opened discussion clear chance which was the last discussed and de- by Johnson, cided Graham v. supra. 516, Cartwright,
North v. 871, 872, 119 Utah 229 P. 2d injuries 17-year wаs an action for suffered old plain- resulting tiff from a collision between an automobile and a motor scooter operated violation plaintiff of the Motor question Vehicle In Code. this case the sole before court this was whether guilty plaintiff contributory stated, as a matter of law. We promulgated “These protection statutes were for the public of the safeguard property, and to persons life using high- limb of ways type from accidents of the here involved. Violations of these then, statutes constitutes in law.” again, however, In this case now before us was not raised in the briefs and directly was not considered Furthermore, this court. plaintiff’s was such as is generally held to impose degree him upon the same of care required as that of an adult. Arrowhead, Nelson v. cases except these prior
In all fact of the without discussion made decision was supra, to an or the infancy applicability of the plaintiff statutory of a rule that violation of the infant plaintiff negligence. duty in law under considera-
An excellent discussion problem A. L. R. 1170. It is there pointed found in 174 tion is statutory if the violation A. L. R. at out 174 page regard without to the rules as to special rule is to be applied infancy, a com- of the factor of the result is consideration negli- abrogation relating jurisprudence plete gence children, contributory where the *7 violation, guilty child of law if the ordi- has been whereas nary contributory rules as to the of children are abrogation require any to it does not of the stat- prevail, utory rule, violation where fall the child except recognized by case, the first classification in the Nelson us age beyond If the child is supra. this and initial capacity assumed, is established or there is room for the operation statutory of the violation rule where the conduct of the infant violator does not conform with the standard special of care statutory to him. applicable Such of the operation violation rule would be restricted tо the extent conformity child’s conduct inis with his standard proper care, however. unusual, As is not authority there is a split upon this question. minority gives The view which statutory vio however, lation rule largely precedence, is by supported cases much like the Utah cases discussed above where the rule was applied without discussion of the fact of the in fancy of the plaintiff. majority view which upholds consideration infancy well by represented the case of Fisher, Locklin v. 452, Div. App. 162, 36 N. Y. S. 2d Cohen, McNamarra v. 184 Misc. 55 N. Y. S. 2d 600, which concluded that the violation rule should be lim by ited age, intelligence, consideration of the and experience majority view and conclude
of the violator. We this adopt ordinarily involv- that whatever rule is cases applicable injured ing infant, by a law violation an it is at least to be by a consideration of such proper person’s tempered This consideration is within the capacity. province jury under instructions from the court. proper following by are
We constrained this view adopt by considerations noted the annotator in 174 A. L. R. 1173: (1) regulatory or Most laws are not limited prohibitory language scope particular persons such include children as well as adults. true This is of the statutes here negli- contributory involved. The rule toas the effect of gence is likewise to children applicable as well as adults. Yet, statutory where there are no violations infants in- volved, qualify all contributory courts the effect of the negligence rule to the extent it is to be applied contributory after is established a considera- tion of the standard of special care to children. applicable
(2) A further consideration is the between comparison law, civil and criminal law. In civil where there is no vio- involved, lation of statute given special consideration is the infant’s Similarly standard of care. in criminal law ability infant’s to entertain criminal intent receives special consideration. To declare an infant inse civil law per statute, upon violation of a *8 thereby him him depriving given of the usual consideration in that sphere law is inconsistent with the special given consideration him within the criminal sphere law. succinctly
As stated in Black, v. 331, Williams 147 Tenn. 247 S. W. 96: public policy “A humane great deters us from weakening too a of safeguards the that the law throws around children. We would not be satisfied to relieve obligation motorists and others of the of ordin- ary injuries care to avoid to minors streets, on the though even such violating
minors were themselves the law.” jurisdiction in this that the rule prevailing that The fact law, not negligence of does a matter as is a law violation contributory of a that the rule overcome according to the proper to be determined child is charged, not does which he is of care with standard statutory rule is nullified violation mean that of a the violation statute If where children are involved. care than that which by to evidence less a child is found age, the same ordinarily a child of could be of expected intelligence, knowledge, could held he and experience, barring recovery. an contributorily On issue judging negligence, measuring contributory of this ordinarily accountability is of immature children question jury to be to a of fact which there left as about might The trial court be reasonable difference of opinion. ruling. did not in err so further the trial сourt erred
Appellant contends submitting jury theory “last upon case clear He chance” of the collision. avoid the Johnson, relies on Graham v. we which stated: supra, “* * * failing One should not be liable held to avoid effect speculative of the other’s it a situation where is as to opportunity whether he was afforded a clear to avoid it. In a parties significance situation where both are on the move important. word put ‘clear’ is most Otherwise we onus avoiding party negligent. the effect of one’s aon That party’s negligence only definitely arises when it established that ample opportunity there was time and to avoid the accidеnt which advantage (Italics added.) was not taken of.”
There is no doubt but that in order for the be properly submitted to a the evidence must be such reasonably finding support there awas fair and clear opportunity, exercise reasonable care, injury. to avoid It would not be sufficient that it hindsight from appear safety measure, some possible or even care, reasonable the defendant “the skin his teeth” could have avoided the collision.
550- the treatment heretofore approved has court This 480, in 479 and out Secs. doctrine as set clear chance last Ogden Rail- Torts, v. Union see Compton Restatement 515, P. 2d Utah way Company, & Depot those sections. discussion : follows 480 reads as Sec. vigilance who, could have plaintiff the of reasonable “A exercise danger in time to the defendant’s created observed if, only if, therefrom, the defen- recover but harm
have avoided (b) plaintiff’s had (a) and realized or situation dant knew of plaintiff inattentive and therefore was reason to realize harm, (c) unlikely peril in time to avoid the to discover his failing negligent with care and to utilize reasonable thereafter ability harming plaintiff.” existing competence his to avoid then jury if submitted matter was properly Thus light evidence, favorable to the taken most plain- finding (a) tiff, reasonably de- would supрort danger, (b) situation of fendant knew of the plaintiff’s reason realize that the was inat- plaintiff realized had unlikely tentive and to discover his in time to avoid peril harm, (c) the defendant thereafter failing to utilize with reasonable care and competence existing harming ability then to avoid the plaintiff. analyzing In facts determine whether these ele- exist, traveling ments we find that the defendant was north- along according ward the surfaced road own testi- to his mony; hour; was 25 miles he first speed per observed boy bicycle traveling on his the same direction about 300 feet ahead him. at about 200 feet he sounded his horn, give boy any at time but no did the ever indication warning any he heard of defendant’s It approach. unreasonable, therefore, for the to find boy that defendant was aware that to his oblivious danger Defendant he approach. said first realized the at collision a distance of 78 feet from the point impact, which indicates that the must have at that started
551 indicated. Reasonable minds turn, hereinbefore to grad- any turn but he had not made sudden find that could highway. of the Not- ually over to the west portion veered danger withstanding realized the the defendant collision mentioned, safety he took no measure whatso- at the point boy within 20 feet of the when he ever. He waited until to turn sounded his horn and started to his lеft or on to the highway, go apparently west portion attempting striking side; around him on the west this resulted in edge 2 about feet from the west of the surfaced portion highway. At no time did defendant his brakes. apply Setting might any aside consideration of what defendant danger collision, have done before he realized the what could he have done after he reached that 78 feet from point, safety There are at least two impact? mea- first, sures which could have been employed: apply brakes; second, to sound his horn.
Let safety us see what the effect of the use these mea- been, analyzing sures would have each but separately, keep- ing in mind the fact that rely defendant did not have to solely any on one of them. of brakes:
Application could take the lowest at which the speed traveling, defendant himself said he was (tr. 30). during 20 miles hour At per that speed, his reaction time he would travel feet before the brakes were after applied; application, his brakes would have feet, making the car in 21 stopped a total distance stopping Thus, of 43 feet.1 if he had employed this most obvious safety measure, and usual he would have 35 feet stopped striking short of boy. Defendant also testified that he traveling (tr. about 77). 25 miles Assuming hour per he speed, during would travel 27.5 feet his reaction time before the brakes were after applied; application, brakes would have the car stopped slightly less than 35
1Figures publication by from a Highway Utah State Patrol. feet,1 which of 62.5 distance
feet, making stopping a total boy. with the 15.5 feet from impact car still leave speeds that at either above unquestionable It seems margin safety fair, which clear there was a if he had his brakes applied the collision avoided could have danger. Further, any byif chance realized the first when he him, would have he had not completely stopped the brakes sufficiently have avoided the collision at slowed down injury to the deceased the death оr serious least so that averted. would have been *11 testimony Sounding own the defendant’s re- his horn: aware, he was the deceased seemed be
veals that He horn at 200 did sound his approach. oblivious to until about 20 feet of the before feet but waited within again. sounding safety we the other fac- it Should exclude jury reason- tors above mentioned it seems that could warning ably have found that a further the horn be- may tween two those distances have enabled deceased to learn of and defendant’s avoid the collision. approach
The submission of the of last clear proposition chance in the case on instant need either of the twо depend Particularly may factors discussed above. it not have been sounding it on proper alone, rest the matter of the horn only safety available, it were factor view the fact did sound his at horn twice the distances mentioned. out,
Under the facts as above set could reasonably defendant, discovering find that the upon boy, peril inattentive failing “in to utilize competence with reasonable care and his then existing ability harming to avoid him.” No submitting error was committed in that matter to the. jury for its determination.
Judgment affirmed. respondent. Costs to JJ., WADE, concur. CROCKETT result. HENRIOD, J., concurs (concurring). WOLFE, Justice Chief first, considering from from two aspects: this case I am highway with- on the who is the traveler the standpoint timely observed the plight he have fault except out under 480 of Re- inattention (plaintiff’s § of the plaintiff Torts) thereafter utilize with and failed to statement existing ability a clear to avoid competence reasonable second, from the of a harm to the standpoint plaintiff; judged youth conduct should at all events be whose light I have not capacity.” “such person’s neglected to take into the burden on consideration placed the traveler in instances where his situation is rapidly changing traveler, in reference to the of another situation case, stated, in which as has been often the last clear chance very doctrine should not for the reason that applicable sought a clear on the of the traveler opportunity who is part charged assay. Consequently, to be is hard to he should not be held for the of an responsible results accident not making of his own contributed, nor to which he had *12 in to guilty which he not respect was of antecedent or negligence. thinking my primary So in on the application of the clear chance doctrine I have eliminated the idea Rogers guilty negligence of or primary antecedent great inadequate such as too or speed lookout in the fore of part this episode when the defendаnt first saw the de- Timely blowing ceased and blew his horn. of the horn was Johnson, what Darlene driver of the car in the case of Johnson, 346, Graham v. 230, Utah 166 P. 2d failed to do.
I to prefer consider this case in to respect defendant’s last duty, clear chance as has the author of the opinion, from a when point the judgment defendant was his own 78 feet from the of impact, at which time he testifies danger I of a collision. the first impression his
he had duty toward the clear chance last assess we should think history of the events the brief that point from deceased the collision. preceding to consider § a moment I depart mind
With this never been has This section of Torts. Restatemеnt bring case into the to it appears me because quite clear to unnec- negligence defendant which serves antecedent analysis, handy complicate problem. For essarily to It reads: requote the section. I vigilance could plaintiff who, of reasonable the exercise “A danger by the [un- created have observed defendant’s therefrom, re- derscoring harm have avoided in time to mine] plaintiff’s (a) only if, situa- if, knew of the defendant cover but plaintiff tion, (b) to realize that realized or had reason and unlikely peril in time to discover his therefore inattentive failing (c) harm, to utilize thereafter avoid ability existing competence his then to avoid care and with reasonable harming plaintiff.” light danger necessary Why to frame a rule is it negligence? I think the phrase created defendant’s negligence” should read “defendant’s pres- “defendant’s duty of the defendant toward the plaintiff ence.” though guilty would arise even defendant had been negligence, antecedent but arose from whose (the doing defendant’s) harm failure to avoid to an inattentive when defendant realized the inatten- plaintiff he, defendant, tion and further realized that if he con- course, tinued on his or failed to alert plaintiff, likely realizing him; ability harm and so had the opportunity such harm. prevent may may
The fact that the defеndant not have been guilty antecedent primary to me to be appears irrelevant in the last clear chance of this case. If aspect .any closely had never at time to the acci- prior dent been with lack proceeding as to circumspection etc., he speed, would not have been exonerated from re- *13 defendant, he, if the had had the accident for sponsibility materially reduce his so as to speed to stop opportunity consequences mitigate of a collision or substantially defendant, he, was aware when timely warn jury reasonably to have have been found or could danger, boy did not realize his and the that the been aware yet utilize with rea- did realize it failed to defendant existing ability to avoid care and competence sonable harming boy. leaving jury questions
I means realize this cognizant boy’s inat- the defendant was whether to his whether the defendant had tention approach timely boy’s such notice of the unawareness as would en- boy. the defendant to act so as to avoid harm to the able cognizant questions I am in such that unless action only in is allowed cases where it under the evidence appears, that the defendant did have an unutilized ample opportun- ity avoid the accident after he learned probable unawareness we shall in- plaintiff approach, seeming many trude a last chance clear factor accident subject liability plaintiff’s cases and thus defendants to for a because the late and new of the de- utilizing fendant his clear to avoid chance the acci- original insulated the careless conduct. plaintiff’s Such dent consequences would, tersely expressed, make the defendant avoiding negli- responsible effects of own plaintiff’s gence, consequence never intended the authors of the doctrine, humanitarian and a perversion of fundamental liability fault, concepts for accident follow should that a plaintiff reсover cannot even for the he, himself, if has not conducted himself circumspectly because the law does not aid who plaintiffs though are themselves imprudent (defendant) even another has also shared in the failure to conduct himself with pru- dence. We have no doctrine of apportioning effect of negligence in this state. Whether after the experience under the Federal Employers’ Liability Act, 45 U. S. C. A. 51§ *14 salutary or whether be seq., such apportionment
et teaching juries along of the lines reform should be may slight negligence not pre- on the of the plaintiff part contributory only recovery, where the so-called but vent result, efficient factor in the a substantial and is assessing damages of clаimed to the whole law or whether reformed should be so be attributable damages the claimed will bear some relationship legislature. delictions, gravity of the for the I But in this case there are circumstances which think sign recogni- gave jury question. boy make it a no warnings although given tion of twice defendant’s sound —certainly on a circumstance in itself to the defendant put boy notice that the had not heard them and cause probably again warning him to sound if a third and even emphatic he had no time to or slow down. It not a was case of a stop change moving rapid relative of two fast ve- positions cycling riding hicles. The a slow- was comparatively moving give vehicle. This circumstance alone rise to situation where it is on incumbent to determine to that respect vehicle whether the more comparatively one rapid had the clear to avoid the opportunity accident mitigate it Certainly into a minor collision. possible vehicle which comes with the potentiality substantial damage, by as McDONOUGH, stated Mr. Justice owes duty toward a lad on a duty may frail vehicle which discharged by logic Regard application alone. for life and limb of children does on impose motorists a duty toward beyond those children that called for adults regardless of violations of law committed those children.
I involving hаve heretofore discussed this case as agree a last clear chance I problem. with Mr. Justice McDONOUGH whether the guilty defendant was primary question was under the circumstances a jury. for the But would that be pertinent if the jury should find that the last clear chance principle to be it was admitted In Graham Johnson applicable? v. Gary definitely if because Graham applicable street, just definitely then under in law playing was Darlene aware of the evidence that case Johnson inattention for she had aware presence washing street, from across the the Johnson watched while car, boys Gary playing Graham street. So *15 Gary if in law in so was the playing, was so give girl negligent failing signal, Johnson in to a sound neligence and this not an antecedent nor a was primary neligence, only negligence. but her first nothing I
There is know law that of which exempts arising negligence a from the of a violaton rule or ordi nance such street children and the playing inatten tion which attends such from the playing of application the last clear chance In doctrine. the case Graham v. of Johnson, Gary Graham, 13-year boy, wrongly a old was playing the street violation of an ordinance. This was negligence law, negligence and this on Darlene imposed Johnson, leisurely automobile, driver minor of the Johnson duty timely horn, the to definitеly sound the a last clear chance to warn the inattentive children on the street. did duty; Darlene not perform hence of owner acting Johnson car for whom Darlene was was responsible regardless Gary any question to of Gary whether as a 13- year boy intelligence old had the and experience to realize danger street, regardless playing in of his negligence. Even an imbecile playing in the street is entitled of the last protection clear chance of a driver. When it once -is determined that the driver of a car has in law the last clear chance opportunity and that primary or ante negligence case, cedent is nоt in the it is then not necessary to into the probe whether the one to whom such owing last clear opportunity is of an to be account contributory negligence. able That comes in when stage the case is in the where necessary it is to determine charged whether infant is to be negli with contributory gence destroy right which would recover, to because of against negligence, case defendant. But where the
such fact- to the establishment the state of has progressed negli- obligation, contributory chance finder of a last clear gence a further or new on perhaps —unless fulfilling defendant from part plaintiff preventing obligation immaterial. a last clear chance —is guard against an This further the need illustrates beyond the clear chance doctrine extension of last humanely domain it means serve. analysis logically my
I from of the reason think it follows on take why we not in v. Johnson called were Graham in that case the matter of the effect contrib- possible up 13-year utory Graham and the old determined, how attendant such problem agree said, fully I I with as well as what have hitherto Mr. in his clear enunciation of Justice McDONOUGH principle “If the of a statute is found to evidence less violation child expected ordinarily which could than that be child care knowledge, age, intelligence, experience, he could held same
contributorily negligent barring reovery” agree contributory is Also I applicable. when reading: with statement contributory negligence “On an issue last clear [which present], measuring judging phase this case is not this chance accountability ordinarily of children of immature is be might as a of fact about which there
left to reason- opinion” difference able myself I that at time do not commit except .this whether the standard ordinarily expected age, which could be
“that of a child of the same intelligence, knowledge, experience” knowledge age, intelligence, experience particular “the question.” child