113 P. 1032 | Utah | 1911
Lead Opinion
Appellant was injured by being struck by a street car while she was in the act of crossing one of respondent’s tracks, and she brought this action to recover damages.
In her complaint she alleged that the respondent was negligent (1) because the car with which appellant collided was not equipped with “a sufficient guard or fender,” and that the same was not maintained in good repair; (2) that the car was not provided with “a good and sufficient headlight;” and (3) that respondent “carelessly and negligently ran and operated the car, by reason of which appellant was struck.” Respondent denied the acts of negligence, and pleaded negligence on the part of appellant, which it is alleged was the proximate cause of the collision and injury.
Upon these issues the undisputed facts developed at the trial are substantially as follows: On the 19th day of August, 1908, at about eight-thirty or nearly nine o’clock p. m., the night being cloudy and dark, the appellant was walking
Mr. Davidson, another witness called on behalf of appellant, testified: That he with others was riding on the front platform of the car in question at the time of the accident; that it was dark and cloudy, and that he was standing by the motorman; that the rays of the headlight were thrown twenty-five or thirty feet ahead of the car; that he saw, a lady on the track in front of the car. “Q. Did you see her as soon as the rays of light were thrown upon her? A. Well, I should judge so. She got just in the vision of the flash of it once. ... Q. Now, was the motorman
Another witness, named Hose, in substance, testified that at the time of the accident he was standing at the gates of the park; that he observed the car coming south. He furthei* said: “I suppose it (the car) had gone maybe a block or more, a ci'ty blockthat he noticed that the car had stopped; that he noticed the headlight on the car; that the headlight was “the kind ordinarily used by the street railway company, only at times it was very dim;” that he did not think it would throw its rays “to exceed twenty feet;” that he was “possibly a half or three-quarters of a block away” from where the appellant was struck.
There was other evidence corroborative of the foregoing, but none in conflict with it. It also appeared that inside of the park proper, and at considerable distance from where the accident occurred, there were music and other noises that usually occur at such amusement places where a large crowd is assembled, as was the case on the evening in question. The point where appellant attempted to cross the tracks, and where she was struck, is about five hundred feet north from the entrance or gates of the park. Nothing, is made to appear with regard to the character of the place, only that there was no public crossing at that point; that is,
There was also evidence respecting the injuries appellant sustained, but it is not deemed material to state the extent of her injuries on this appeal.
IJpon substantially the foregoing evidence the appellant rested her case. Kespondent also rested without offering any evidence, and moved the court to direct the jury to return a verdict for it upon the following grounds: (1) That appellant had produced no evidence that the respondent had failed to equip its car wtih a sufficient guard or fender, or had failed to keep the same in good and sufficient repair; (2) that there was no evidence that respondent had failed to provide for and keep on said car a sufficient headlight; (3) that there was no evidence that respondent had been negligent in any way in operating said car, or that it was being operated at a high or negligent rate of speed at the time of or immediately preceding the accident; and (4) that the un
Counsel for appellant insists that the trial court erred in directing a verdict. In their brief counsel state the questions for consideration by us as follows: “Two questions are presented for review: First. Did the defendant as a matter of law exercise due care ? Second. If the defendant as a matter of law did not exercise due care, was the plaintiff as a matter of law guilty of contributory negligence ?” Counsel for respondent agree with the foregoing statement, but contend that both questions must be answered in the affirmative, while appellant’s counsel insist that they must be answered in the negative.
In view of the undisputed facts and circumstances when applied to the grounds of negligence relied on by appellant, were there any facts, or inference from other facts, upon which a jury might have predicated a finding of negligence against respondent ? Stating the proposition in another form, are the undisputed facts of such a nature that fair-minded men would be justified in arriving at different conclusions with respect to whether the respondent was guilty of some act of negligence or of some act of omission described in the complaint, and which was the proximate cause of the collision and consequent injury to appellant? Counsel for appellant contend that the question whether the headlight was sufficient or not was a question of fact for the jury, and hence the trial court erred in directing a verdict on this ground. They further insist that “the question of a sufficient guard is likewise a question of fact. It was alleged and proved that the fender and guard failed to operate.” The foregoing are the only grounds 'of negligence claimed, and are the only reasons assigned' why respondent was negligent.
But there is another view worthy of consideration. There is absolutely no evidence respecting the kind or character of a headlight respondent ought to have provided for its cars. Appellant’s right to a recovery must rest upon a violation of some legal duty by respondent which it owed her. What was respondent’s legal duty with respect to the headlight? If the light was such as would answer the purposes of a headlight in the operation of respondent’s car, and was sufficient to protect the public against injury from a moving car, it would seem that respondent had discharged its full legal duty owing to appellant. In view of the relations existing between appellant and respondent, the jury could not arbitrarily assume that the injury was caused through the fault of respondent. Unless there was some competent evidence to show that respondent was negligent with respect to some of the acts or omissions complained
Keeping in mind what we have just detailed, it is manifest that the conditions usually surrounding a street car collision between a pedestrian in the street and a motor car are so variant and complex that it is in exceptional cases only that the question of due care, or the want thereof, on the part of either party, is one of law. Where, however, the facts are not in dispute, and the inferences are such that it is self-evident to all reasonable minds that the only
Tbe foregoing cases not only bold that under tbe circumstances disclosed by tbe record in tbis case appellant • was guilty of contributory negligence as a matter of law, but many of them also bold that under facts similar to those in tbis case tbe respondent was not guilty of negligence as matter of law. In so far as appellant’s contributory negligence is concerned, tbe case at bar is in principle not distinguishable from tbe cases of Burgess v. Salt Lake City Ry. Co., 17 Utah 407, 53 Pac. 1013, and Hall v. Railway, 13 Utah 243, 44 Pac. 1046, 57 Am. St. Rep. 726. Indeed, if there is any difference, tbe Burgess case, in view of tbe surrounding circumstances and conditions, was much stronger in favor of tbe injured person than is tbe case at bar. Tbe contention that tbe case of Spiking v. Consolidated Ry. & P. Co., 33 Utah 313, 93 Pac. 838, is an authority supporting appellant’s contention, is untenable. In that case it was contended by tbe company that tbe court erred in instructing tbe jury that it was tbe duty of tbe deceased to “observe tbe car,” instead of requiring him to “look for the caff’ before attempting to cross tbe track. Tbe duty imposed by tbe
From wbat bas been said it follows that in tbis case tbe jury could do no more than either to excuse tbe one or condemn the other of tbe two parties, and do tbis without any evidence upon which to base tbe excuse or tbe condemnation.
Tbe judgment therefore should be^ and it accordingly is affirmed. Costs to respondent.
Concurrence Opinion
(concurring).
Viewing tbe evidence in a light most favorable to tbe appellant, I think tbe verdict was properly directed, and I therefore concur in tbe result affirming tbe judgment. There is evidence showing that fenders as ordinarily attached to cars extended about eighteen inches in front of them and about eighteen inches to two feet above tbe rails. When tbe car was stopped, tbe appellant was found lying under tbe fender. There was no evidence showing that tbe fender bad dropped, or that its suspended position on tbe car bad been disturbed. I think upon tbe evidence the inference was permissible that it bad not dropped, and that its position bad not been disturbed. I shall therefore assume that tbe jury would have been justified to so find. Tbe negligence alleged in respect of tbe fender was that it was “not good and sufficient,” and “not in a good state of repair,” and “would not operate to prevent injury to a person” struck by tbe car. In my judgment tbe proof that plaintiff was struck by tbe car and w.as found lying under tbe fender undisturbed from its position is not sufficient to support such allegations. There is no other evidence tending to prove them.
I think it may be conceded that a headlight is intended for two purposes — one, to enable the operatives of a moving car to view tbe track in advance of it; the other, to' enable persons about tbe track and street to ascertain tbe approach of cars. There is evidence showing that tbe headlight on tbe car was very dim, and that it cast its rays but twenty
No question is here made that the operatives of the respondent were negligent in the operation of the ear.
Now, as to contributory negligence. Of course, the appellant was required to use ordinary care. Ordinarily that question is one of fact. To here say that the appellant was guilty of negligence wherein was she at fault? What act or acts committed' or omitted by her rendered her conduct negligent? She was in the street, where she had the right to he. She had the right to cross the track at the place attempted by her. It cannot be said as a matter of law that a prudent person of her age, and under the circumstances of the case, would not have attempted to cross the track at the place in question. It is not claimed that she was negligent in the position taken by her on the track. She testified that she had just crossed one track .and was attempting to cross another when she was struck. Another witness testified that he saw her but a moment, and she appeared to him to be standing or walking on the track, or facing south, the direction in which the car was moving. The claim of negligence made on her part is that she under all the circumstances ought to have ascertained whether cars were approaching before attempting to cross the tracks, and that she failed to