*1 here we decide any merit is that have appeal.” prematurity
anent appeal, only point
As to Wood’s improperly new trial the motion for filed an affidavit was
was denied because about juror said
by stranger as to what a paid no properly court jacket, the trial it, an effort since it was
attention to impeach the nonparticipant
affidavit done, particu
verdict, normally isn’t hearsay.
larly by
McDonough, callister
WADE, JJ., concur.
CROCKETT, J., concurs in the result. Henriod, J., dissented. C.
Louise B. Taylor, Mary ad litem of James Guardian Taylor, minors, Louise and Susan Appellant, Plaintiff and
v.
Virginia JOHNSON, Clare Defendant Respondent.
No. 9874.
Supreme Court of Utah.
June *2 Provo, Aldrich, Nelson, for Bullock &
n appellant. Christenson, Novak, Taylor, Paulson & Baldwin, Provo, City, Lake Hanson & Salt respondent. WADE, Justice: Taylor, plaintiff, Louise B. on be The children, seeks half herself and minor husband, for the death her recover Taylor. He was killed while W. James a hitching the rear of a small tractor to defendant, Johnson, who Miss .car front of veered her car around the From the rear of the trailer. wrecker into cause action the verdict of no appeals. that the plaintiff (1) She claims de conclusively shows 'evidence fendant, law a matter of Johnson, as Miss which was the guilty death, Taylor’s proximate cause of sole instructions (2) repetitious, out, er long, misleading, drawn emphasized roneous, ambiguous, and over claims, influenced the defendant’s thereby depriving jury against her of a fair trial. 13, 1961, on
The accident occurred June U-28, Gunnison and Highway north of Levan, Utah, p. south of m. on highway about 9:30 east shoulder north of the night. Milner, Don with his wife Milner car. dark then backed the rear daughter car, wrecker, driving while end which was south, directly behind the Milner car and north toward Levan with a small home- ground, hoisted its hind wheels off the rear, made trailer attached struck parked left helped it while he Milner and highway deer on the which broke his rear Kester hitch the trailer onto the rear of stopped axle and his car. The came the Kester car. Miss came over rest few feet east the center line hill from the south while of the facing toward the north. between the trailer and the Kester car. mile-long dip It was near the bottom of a She saw the and the blue re- road, straight which was and free light top volving of the wrecker when from all visual obstructions for a half away, she was a half mile but assumed it a mile in each highway direction. The had moving toward her opposite on the been recently resurfaced. It was feet side highway. of the According her wide with a broken white line near the testimony gas, she took foot off the center and solid white lines near speed reducing her from about SO edges. *3 graveled outer The shoulders were hour, per miles when she discovered that pits, quite into the borrow which were the wrecker was on her side of the road. wide.
To avoid a head-on collision veered she Milner, flashlight, flagged with a down right around the front of the wrecker coming driver, car from the south. The and into the rear of the trailer and the Kester, acquaintance Mr. was an to- car, Kester could she not see because gether stopped they another car whose they parked were behind the head- wrecker driver went on to Levan where en- lights facing jammed he her. trailer The gaged Mr. with the wrecker tow into the rear of the Kester in the Milner car. When wrecker was killed They between them. they arrived took the trailer with the shoved Kester car brakes on more rear placed car and feet, Milner it be- than Taylor’s body found parked hind the Kester car which was between the trailer and the Kester car. right north with its wheels diagram only. The is for illustration
346 suggest the evidence in the traffic
(1) Viewing
approaching
there
decision,
special
as
exists
light
hazards
most favorable
a slower
requiring
speed. However,
pru-
basis for
requires,
reasonably
we find a reasonable
what a
law
person
favor.1
dent
existing
the decision in Miss
do under
would
Johnson’s
However,
Taylor’s
strongly
question
circumstances
case
for the
determine,
only
party
at fault. Admitted-
we can
indicates that she was
hold a
guilty
negligence,
ly,
recognized the wrecker
as a
Miss
matter of law
away
night.
conclusively
where it
half mile
She
shown that
dark
moving
pursued
course
it
was not that
failed to ascertain whether was
of a reason-
ably prudent person.
stopped,
made no claim what-
or
and she
We therefore can-
impact
not direct a
prior
question against
ever that
she reduced
verdict on this
speed
per
Miss
slower than miles
hour.
50
Johnson.4
Our statute
forbids
on a
driving
hand,
On the other
Miss
defendant
highway
speed
reason
greater
at a
than is
claims
guilty
conditions,
able under
and where
existing
contributory
failing
post
special
exists, designates 50 miles
hazard
flares to warn
traffic of the
approaching
per
nighttime speed
hour as the
limit for
highway.
on the
Flares are in
hajzards
this
kind of
and such was
tended as a warning of-obstructions
posted speed
highway that
on this
.limit
Although
some duration.5
wrecker
night.
any speed
The statute makes
ex
flares,
use,,
brought
did not
speed
prima
cess of such
limit
facie evi
stop
highway
its
on the
was intended to be
speed
dence that such
is not reasonable
only
short duration. Both the wrecker
just
and is
Until
before the
unlawful.3
and the Kester car were to
be moved
accident, by her own admission Miss
soon as the trailer was hitched to the Kes
John
statutory
posted
son was
exceeding
warnings
ter car. As
traf
speed
so,
though
limit. This is
fic,
even
she
parked
high
each
vehicles
on the
recognized that
there was a wrecker on
required
way
regular lights
had the
highway.
makes no
that she
vehicles,
She
claim
including
such
the wrecker’s
speed
any
reduced her
at
time before the
south,
dimmed
blue-
hour,
collision
per
slower than
50 miles
light
top,
revolving
on its
and amber flash
speed limit,
maximum
although a wrecker
ing lights on its front fenders. The trailer
on the
night definitely
at
highway
should
hád
tailgates
red reflectors on its
and the
Nixon,
262,
1. See Anderson
41-6-46(2)
v.
104 Utah
3. See Section
U.C.A.1953.
216;
Richardson, 9
139 P.2d
Ivie v.
Utah
4. See Federated Milk Prod. Ass’n. v. Stat
5,
Ferguson
781;
Jongs
Plbg.
Htg.
2d
336 P.2d
Co.,
v.
e wide
&
2
11 Utah
ma,
179,
d
Utah 2d
P.2d
404.
Mrs. Kester testified all of number flagging down the trouble The instructions contain no direct con- approached from south the cars which cise statement main of the determinative n prior car, them directing the Johnson issues of fact in the case. issues Such high- pass side of the the left west on were: (a) negli- Whether Miss Johnson’s way. she saw the testified She John- gence proximately caused the accident came the son as it over car continuing to drive half full mile immediately hur- Tiill the south unreasonably at an high dangerous down, it traveled flag ried it but speed, rate all knowing the time she passed she get so her before could fast it was approaching a wrecker on the road headlights. (cid:127)south wrecker’s front of the but was unable to determine whether it was speed the at 70 'She estimated moving stopped, or whether or not or it hour, per and that there 80 miles road, was on her side whether or speed before crash. reduction of its stopped there were other vehicles crash shoved This the fact that road it neighborhood, until the Kester car feet on trailer and accident, too late to avoid (b) Wheth- brakes on indicate highway with its prox- by contributory er negligence speed much than Miss con- greater imately by failing caused accident n cedes. precautions if all these But even place provide flares on the road or other taken, question of whether ap- warnings of the hazardous situation to proximately proaching guilty negligence Such a statement of the traffic. supra. note See * * * language gent person issues not overbur ordinary and if negli- legal terminology gence dened with would have proximately each contributes in problems.7 greatly jury’s any degree clarified the to cause the accident then ” * * * neither can recover. (Emphasis instructions, At least ten different after i added.) We have criticized such an in- situation, fact ended with presenting emphasizes struction in that it degree long, repetitious statement that such a find- required to liability establish *6 required a verdict for the ing defendant. against defendant, suggests and that Some of the fact situations involved the very slight negligence part on the of the question negligence of Miss and Johnson’s injured will liability, defeat such Taylor’s question others involved the of may cause jury forget that the in- contributory negligence. Each instruction jured person’s negligence will not defeat ended with the statement that if the recovery a unless the finds it was a suggested found the facts as “then the contributing proximate cause of the acci- your plaintiffs and cannot recover verdict dent.9 must be in and favor of the defendant plaintiffs, against Ac- No Cause of 19, Instructions Nos. 20 and each 22 tion.” Three other instructions with fewer deals with an assumed factual situation repetitious positive and directions recited plaintiff’s which if negligence claim of quota- the same conclusions. The above thereon, were based a finding of such only sample. repeats
tion is
a
It
three
facts would exonerate Miss
in
language
times
different
that
under
negligence. However,
plain-
this case
suggested
cannot
re-
facts
tiff’s claim negligence against
Miss John-
cover;
placed
such statements were
at the
son was based
driving
on her
for a half
emphasized
end
an instruction and
with
a mile
night,
on a dark
knowing
a
that
repetitions
capital
letters. No such
road,
wrecker was on the
without reduc-
emphases
placed
on the instructions
ing
speed
her
to a reasonable rate in an-
plaintiff.8
in favor of the
ticipation that she was approaching a haz-
Instruction No.
states
17
that “the law ardous situation. So the rules enunciated
permit
does not
negligent
heirs
aof
in these instructions
based
an
being
on
person
against
negli-
recover
another
entirely different factual situation
have
7. See
Pulos v. Denver & Rio
Bldg.,
367,
Grande R.
v. Medical Arts
112 Utah
188
Co.,
238,
241,
37 Utah
107 P.
Ann.Cas.
P.2d 711.
1912C, 218;
Buggy
218,
v.
Lewis,
Smith
Columbus
8. See Johnson v.
121
240
Utah
Co.,
580,
580;
40
498;
Utah
P.
Cook,
123
Davis v.
P.2d
Devine v.
2d
3 Utah
Heiner,
428,
587;
134,
Ferguson
Utah
P.
1073;
Jongs
Shields
279 P.2d
v.
v. Utah
Light
Co.,
ma,
& Traction
179,
99 Utah
10 Utah 2d
These ligence. Thus, sug- Instruction No. 29 of Miss assumed were determinative John- gests erroneous, that if he left the an un- wrecker be negligence, son’s would not length existing, they reasonable of time on the conditions here but under the contributory negligence. he guilty of misleading. shows that were The evidence suggests Instruction that if headlights did obscure Miss No. 30 the wrecker suddenly the vision, working the trailer and and that she was between Johnson’s dangerous and position when Milner in a immediate hazard confronted with an supra. note See watching agree in reasonable care that this case should be remand- failed to use I posi- in that for a while ed new trial. vehicles contributory negli- tion, guilty of he was Setting aside moment for the minor dif- repeats about gence. Instruction No. 31 large with the number of ficulties instruc- previous in- the same as the two thing (47 given) jury tions were to the and di- end- All of these instructions structions. my attention recting to fundamentals it is by that he up jury ed if the found stating opinion insuperable that an obstacle re- contributory negligence, then guilty lates to the jury to the submission plaintiff instructions cannot recover. These concerning issues fact the deceased’s tendency emphasize fact had a definite to contributory negligence which the evidence by supported the situations which were not justify. not does evidence, point jury if the and out that always There is a keen awareness that found, in verdict favor of so must be any specific before as to issue the defend- plaintiff, against defendant ant’s is submitted to the cause action. there must be a reasonable in basis support evidence which would such a find-- conclude under the circumstanc- We fair, ing. This is proper reasonable and es the record instructions disclosed But, impresses rule. in what me as over- misleading were as to what defense, zealousness of corollary they negligence; would constitute sight specific often lost any of: that before repetitious many were them were issue of plaintiff’s fact as contribu- premised on factual situations negligence should be tory submitted supported not In view evidence.11 jury, there must also be reasonable basis of the whole situation committed the court in the support evidence finding. such a prejudicial error its emphasizing applied In fairness the rule should be with structions as it did in of the defend- favor protect the same force rights against plaintiff, ant and there- plaintiff as the defendant. fore the entitled to new trial. undisputed The fact is that Mr. appellant. Costs to just had arrived at this scene to take care the wrecked Milner automobile and McDONOUGH, J., trailer, concurs re- proceeded dispatch that he with sult. carry objective. out this The Milner
car was so wrecked it was necessary that CROCKETT, spe- (concurring to lift and tow it from the rear end. Justice required cially) : trailer, This removal of which 8, supra. 11. See notes appears highway me that the best was dealt with in several of the to done. It requests, way against accidents with the defendant’s five of which were guard to just All them given jury. car was what Mr. to the of conclude disabled Milner placed saying that for his do' so Taylor He the wrecker south failure to by did: it, south, they may negligent. find him It is not of with both duty light on; proceeded to doubted that he had the to remove and its turret reasonably Kes- the wrecker as as that attach the to the car of Mr. soon trailer pro- ter, had to it town. could be done. But the evidence here agreed who tow he significant finding that Mr. was be- vides no foundation for a It trailer, any longer Kester car and the lean- left the wrecker there for than tween the hitch, Further, import- ing necessary. fastening over the trailer and more couple length min- engaged point, had been so for “a ant on this is the fact that the of time the had utes” when collision occurred. While wrecker been there could always danger being upon there in have had no effect involved whatsoever approaching I engaged so on the so far as car. Whether had it see, minutes, more, hour, he did was essential been there can each or an or thing accomplishment point the task he was to the the situation from the defendant’s required resulting to do. view and the have collision would exactly Accordingly, been’ the same. 'even to. can see evidence nothing
I highway if the wrecker had been neg- support finding Mr. longer necessary, than as. Stat- above ligent leaving the wrecker on either ed, not, I fail is clear it was evidence length highway for an unreasonable been length how the time it had see keep time; failing a lookout for or in any there could whatsoever bearing have auto- seeing upon proximate collision. cause mobile. It is submitted if some stated, just it was For both of the reasons jury party had resulted in con- to a third conduct, there the deceased’s nection with jury error submit to the the issue of. upon which a exists no basis whatsoever leaving on the the wrecker negligence could charging him with case highway length -for an unreasonable of' on either those gone have to a time. justifica- Similarly, was no issues. there submitting The second basic error in submitting the court
tion for an. contributory negligence question of his justified the evidence issue not relates to them. as for and see duty to defendant’s to look ve^ n In-, highway set forth in hides on the alleged failure duty and The deceased’s n struction No. 28: the wrecker promptly remove *9 duty position “The hitch, to use reasonable care to from his the trailer engaging keep proper for other ve- lookout it is that he seen doubtful could have the things upon Furthermore, hicles or the approaching. car requirement it, the actually cludes see to even he had seen defend- from the if look, as as well for all vehicles reason- testimony ant’s own that she swerved at ably range instant, within the of his vision nothing the there is deceased last you If may constitute a hazard. could have done to avoid the collision. find that Therefore, facts, should have W. under uncontrovertible James seen defendant’s vehicle the col- possible before justification there is no for im- lision, duty it was then his further duty upon the to the deceased look posing seen the having certainly highway; for vehicles the and after defendant’s diligence to use such care and as require “actually not to him to see” and person reasonable use under the would safety negligent. to act for his or be held injury circumstances him- to avoid to There are a number difficulties of other self, you and if failed to use find he which, with the given, instructions the you may diligence such care and then brevity, interest of need be detailed not you find he negligent; and if here, except appropriate deem it I any, find that negligence, if was a such First, following make the I comments: proximate injury, cause of his the then it is fair believe to state that both coun- plaintiffs may against not the recover perpe- sel the for and defendant (Emphasis added.) defendant.” upon imposition trated an unconscionable considering propriety applying In the plain- requests. The the trial court in their this instruction to this case these facts tiff submitted over and the defendant important: stooped are Mr. quite over number 30. A of them were down between the trailer and the Kester involved, and in numerous in- long car, necessarily prop- with his attention aspects repetitious; stances and in some upon erly focused fastening his task represented attempts party’s argue circumstances, trailer Under such hitch. position fairly and own rather than ac- obliged anticipate he was not that an present curately disputed issues to the would automobile from its swerve course as requests, jury. plethora Out car did him. to strike It coupled with other it was instructions which doing obvious that he job couldn’t be necessary give, gave a total the court required himof watching also be jury. instructions to assume I such traffic. And he even if had been deny one will is unde- looking, this the trailer was him and between south, traffic sirable, so that faults nor that above stated should be avoided in the another generally event of not attributable average jury, concerned, trial. are far courts —so one, including this more than once —that CALLISTER, J., concurs result sung praises jury’s being has so far as opinion of for the reasons stated in the persons ordinary prudent having common Mr. Crockett. Justice sense and discernment are concerned. opinion The main concedes that all
HENRIOD, : (dissenting) Chief Justice jury’s proper standards the verdict *10 in- Many I dissent. respectfully completely defensible, except some — standard, given were stock structions taken from the wording instructions as a opinion Those which the main structions. whole, opinion and because the main be- picks objectionable being as do not out lieves there were a few many too instruc- all, may objectionable at but seem to be may repetitious. tions that have been repetitious. None somewhat have been obscure, be appear to but would
them was say they misled correct. To
clear and
simply
on our
conclusion
were other instructions
part. There
of the It is like one with numbers. prevails opponent
five witnesses over his
who muster could but three. particular
For us volunteer this instructions, or
case that not obscure
confusing, misled the took
jury’s issue, to at- mind from the real panel an of the
tribute members instructions,
inability to read the entire