Thompson v. Ford Motor Company
395 P.2d 62
Utah
1964
Check Treatment

*1 '30

n paidthe assessed delinquencies, penal- tax liability interest, has no further

ties regard. the Commission defendant.

Affirmed. Costs to CALLISTER,

HENRIOD, J., and C. WADE, JJ., concur.

CROCKETT P.2d 62 THOMPSON,

Harvey Appellant, COMPANY, Defendant and

FORD MOTOR Respondent.

No. 10024.

Supreme of Utah. Court

Sept. *2 Klemm, City, ap-

Barton & Salt Lake for pellant. Jensen,

Christensen City, & Salt Lake for respondent.

CROCKETT, Justice. Plaintiff injuries sues for suffered when the parking City brake on a gar- Salt Lake bage truck charge he suddenly was in gave way so he was unable to back into and control alleges it. He brake that the mechanism was defective. On the basis of depositions plaintiff of the and his co- Jimmy Jensen, worker court ruled the trial plaintiff contributorily negli- gent as a matter and granted of law defend- summary judgment.1 ant’s motion for appeals. Plaintiff On the adversed party survey is entitled have the court before, depositions 1. This case was here Utah 2d turned because the were (1963) opened published. 384 P.2d 109 and was re- and n fairly pivotal controversy and all reasonable inferences this de- upon 41-6-105, light drawn most volves Section to be therefrom U.C.A.1953: to him.2 favorable person charge “No or in permit motor vehicle shall stand 27, 1962, plaintiff Mr. and On March stopping unattended without first employees City, Jensen, Lake of Salt engine, locking ignition and garbage manufac- taken a new model key, moving standing or when defendant, by the Ford Com- tured Motor any perceptible grade effec- without hilly pany, avenue out on their route in tively setting the brakes thereon City Salt Lake to col- section of northeast turning the curb or front wheels to the stopped garbage. truck on lect highway.” side of the steep grade, rather headed southward defendant contends that under the (downhill) on “I” between 12th Street leaving recited above of the truck pointed slightly Avenues. 13th “unattended” and the this violation of stat- southwest, pointing with the front wheels proof ute law constitutes a matter of stopping, set in that direction. On guilty got parking brake, out went proximately that it to cause contributed emptied gar- Jimmy rear where some *3 injury, precludes recovery own which his hopper. cab bage cans into He left the the justifies against and the key in open left that he the door admits rejoins him. notwithstanding He ignition running. motor the and the statute, the he is have his conduct entitled to Jimmy engaged a conversation about in judged applied universally the standard on demonstrator, truck Mr. the with the a prudent of care: that of the reasonable man It three min- Seeronen. about to five lasted under the circumstances. during truck did not utes which time the just At the time the move. about areWe aware that it has sometimes momentarily gar- turned set down two general been a stated as rule that violation bage “something snapped” cans underneath statutory negligence of a standard of care is truck, gave way, the and the truck the brake as a indeed a sound matter of law. This is roll. Plaintiff ran started to forward rule, generalities, has its limi but like all it quite door, grabbed the but not able to proper tations, applicable only under and is into the was thrown to the previously has circumstances. court injuries ground suffering of problem which and to to consider this occasion applying distinction between complains. out the Farnsworth, U.R.C.P.; 56(c), Morris v . 123 Utah 2. Rule see wrong justify this tality rule where circumstances on the side of street they appears and where do not. violation of an ordinance. Whether been first enunciated court in Smith do so this statute or an ordi- [violate Supply depend- &Mine Smelter Co.3 Defend- constitutes nance] violating City ant ent upon Salt ordinance and circumstances Lake of and, governing storage dynamite, generally, question which the case is a exploded injured plaintiff. law.” .Justice fact Frick stated: The rule defendant contends for duty “When a standard of or care is recognition further case of ordinance, fiíed law and such law or Company.6 Skerl v. Willow But Creek Coal safety or ordinance has reference it should be noted that this case was also life, then, property, mat- limb or as a gov concerned with of a statute necessity, ter law violation of such erning explosives. dealing The next case or negligence.” ordinance constitutes Cartwright,7 with this rule North v. question involved Shipley,4

In later case of White contributory violating negligence in two trial court included the above statement In traffic statutes. that case the court ar jury, in an instruction to the where de- rived at what we is the are convinced fendant’s team had run into the sounder and better that: driving while the defendant was to the left rule of .the center of street. This court wrong “Plaintiff’s on the side versed, holding that where there were exca- contrary prima the street to statute is street, right jus- vations on side of the and calls facie tifying left, traveling the defendant explanation posi- justify for an the instruction was This reversible error. highway.”8 tion 'spite above-quoted in' language of the from- case, Subsequent just refer- North Supply the case of Smith v. Mine & Smelter to, cases, red this in a number of court has Co.,,supra. pointed The court out instances slight language, variations properly applied, in which the rule could view, reaffirmed the think is the which we but also stated: one, correct a standard of that violation of *4 safety application

“But that doctrine has no to ordinance to be set statute is or merely prima negli- regarded one team or other ve- facie a evidence of subject hicle dangerous gence, justification itself a or not instrumen- but is to ex- 21, 31, (1907). (1937). 683, 474, 502, 3. 32 Utah P. 686 6. 92 67 88 Utah P.2d 506 516, (1951). 496, (1916). 4. 7. 48 Utah 160 441 119 229 P.2d 871 P. Utah page page 5. 160 P. at 144. 8. P.2d at 229 34 and remanded the case for trial. The court evidence is such that reason-

cuse the required recognized that the ably be that the conduct was decedent was could found effectively the brake the within the standard reason- to set turn nevertheless front the curb and care under the circumstances.9 wheels to that violation able statute would constitute pre proximate The cause issue of per se but stated: to the an even more difficult obstacle sents summary judgment here. As granting of “The uncontradicted evidence leaving negligent sume ample prima at least make is not neces truck “unattended”. would showing hand did facie brake this was sarily certainty follow with requirements comply with the This proximate accident. cause of wholly statute but was ineffective. the evi from also must demonstrated also, show, that Mrs. evidence tends dence. McCoy, [plaintiff’s did set decedent] McCoy ap- very is where it to our own hand brake

A case similar car, Courtney.10 peared had decedent hold the v. Plaintiff’s sufficient to trip strong The de- car. that the car did taken a in defendant’s inference hill, stationary long enough permit parked set the hand the car on main ceased car, occupants alight it. brake, got it started from when the two out of adduced, However, managed to reach under the evidence to roll backwards. She brake, the car have mattered how pull hand it would not in and far lever; over, roll, pulled the brake knocked her hack had continued she brake condition her. on the de- killed Defendants relied defective produced result. iden- the same almost would have ceased’s violation of brakes, learned, setting or the exercise relating Until she tical with ours learned, defective care should relied on claimed reasonable while McCoy right contrary, Mrs. The trial court dismissed brakes. brake, appellate complaint. The court reversed to assume justification Cab, 312, or excuse.” Blue 122 Utah 9. See Gibbs v. Torts, Second, Reese, Langois (1952); See also Restatement P.2d 249 213 j; 288A, (1960); 4, 272, Com- Sec. Comment P.2d 638 Draft No. 10 2d 361 Utah Negligence Cottrell, 25, ment, Viola- Se—Traffic 12 361 Per Utah 2d Charvoz 556, 517, tions, (1961). 565-566 Tenn.L.Rev. Alarid v. P.2d See 30 518 Morris, 617, (1963); Role of Vanier, Criminal 50 P.2d 897 Cal.2d 327 Actions, Negligence (1958), Co- re Statutes a well-written (1949). 21, L.Rev. 47-48 lumbia numerous California decisions views 596, presumption 10. 25 Wash.2d “The states: (1946). stat A.L.R. 603 which arises from and, may overcome ute rebuttable

35 required by condition the statute.” could remain unconvinced page 172 P.2d proximate at 601. conduct was a contributing cause to injury. analysis his own A similar could “Whether deceased was herself be made regard and conclusion drawn in to guilty negligence contributing her to aspects the other negligence charged injuries, upon question, occasion against plaintiff. affirmatively aWas matter to shown respondents. The evidence ad- controlling duced does not establish such fundamental and as fact principle matter is that though law." even the violation of may occurred, have if the circum Reverting plaintiff here: stances are such that his conduct could surely required could not be remain in to reasonably nevertheless regarded as side the truck with his foot on the brake at care, within the plaintiff standard of due is words, just all times. In other he could be entitled jury to have a determine the issue outside the “attending” truck and still it. to upon the basis of that doing Assume a he situation where standard; and proximately whether it con compared with another situation where injury. tributed to cause his own It is also very he was to close as he important keep in mind that the defend here, “attending but was not it”. How ant has proving the burden of these issues sure is the conclusion that in the former against plaintiff by preponderance certainly gotten situation he could into have Therefore, any evidence. if there it, stopped truck and the lat whereas reasonable upon basis in the evidence situation, certainly ter he could not have they reasonable minds could conclude that done so ?11 will Reflection the matter persuaded are not so on is either of these impel the conclusion that from this evidence sues, they should be submitted to trial reasonably jury could believe that even jury; matter, and in case of doubt about the “attending” been outside of but they should be resolved in favor safe “something snapped un the truck when guarding right.12 way, may gave derneath” and the brakes forth, not have For the been able to into it avoid reasons hereinabove set might parties remanded accident the same result for trial event, anyway. jury opportunity presenting occurred In that an their evi- Schneiderman, stringent 11. v. which court should 21 Misc.2d is a measure Cf. Kass Tangren 518, grant (1960). reluctant see 197 N.Y.S.2d 979 be Ingalls, 484, 388, 179, Stevens, Martin v. 121 12 Utah 2d 367 P.2d See Utah Eccles, 289, (1952); 11 Utah 2d for statement and Samms granting 358 P.2d 344. fact, contributory as a matter of respect to the dence contentions negligence, and not because of of a statute. disputed issues: of defendant’s obviously passed prox- The plaintiff’s contributory negligence statute involved protect persons other than driver of suggested in our imate cause as was Thompson, (ap- garbage or other trucks. appeal. first Costs *6 here, clearly He emphasis added.) driver violated statute. pellant). (All terms, park according did not the truck to its McDonough yet refuge behind it on some sort of callister, seeks jj., “proximate theory. Nobody made a cause” concur. contributory negligence aside from WADE, in result. J., concurs statutory violation, that this court has nothing to on that score. Nonethe- review in HENRIOD, (concurring Chief Justice less, Thompson, in class who result). protect, it which the seeks invokes for other in the result reasons I concur highly about under a technical discussion opinion. in main those than stated says it an “unattended” truck. He what is could be there In our former case we said “attended,” were, can he how depositions un- were review where the no might ? anything, claim ask It seems one to. published, suggested that if the facts problem Ford was me be a of whether supported previous case were assumed vehicle, or negligent a defective because of opened, depositions, when and if not use negligent he did Thompson because Knifing jury. one case would be for the anyone care, whether violated due —not dep- examining the manila folders and statute. substantially dif- nothing ositions revealed for sum- argument merit to an I can see therefore, opinion, I am the

ferent. not in- judgment if were the statute mary arbiter be to a fact should this case having there said but this court volved, suggestion. Most of our consonance in the buried jury question if the consequent- secrets what is said main case, which, think, ly I new on unnecessary nothing envelopes developed manila per area. be in the curiam should trial disinterment, my opinion that it is reason, indulged for should Furthermore, opinion, this case my alone. reason question solely should based