Watkins v. Utah Poultry & Farmers Cooperative

shooting jury. Subsequently to the appellant thing arresting why by officer he did like asked know, “Well, I He don’t but when answered: she that. chicken, me I fired.” This me it burned testi- up called arresting mony officer. The was corroborated another findings judgment evidence the attacked supports judgment thereon below. there- entered the court is affirmed. fore J.,

WOLFE, CROCKETT, JJ., C. and WADE and concur. HENRIOD, J., did not participate. & v. UTAH POULTRY

WATKINS FARMERS COOPERATIVE. (251 663.) P. December 1952. 2d

No. 7774. Decided White, City, D. Lake for appellant. Woodrow Salt Jr., Stewart, Hanson, Baldwin, Don & Ernest F. Cannon Hanson, Clawson, J. Rex Hanson Irwin Lake J. Salt City, for respondent.

CROCKETT, Justice. Plaintiff’s car and defendant’s truck each sideswiped bridge other highway. at which somewhat narrows the Plaintiff, Watkins, E. concussion; Howard suffered a brain leg mangled badly his left was and his left arm was almost hanging torn off and left a ribbon of muscle. Amputa- tion of leg the arm above the elbow and of the above the knee required. injuries, was these awful Despite jury returned a against verdict no cause of action the plain- motion, tiff. judgment From this adverse and denial of his trial, for new plaintiff appeals. assignments

His principal of error center around allow- ing evidence of his intoxication and the submission that jury. Concerning issue to the this matter he maintains (a) that there was insufficient evidence to intoxica- show tion, (b) any event, intoxication could not have proximately contributed (c) cause collision and concerning evidence of much of the and result purpose to inflame and prejudice his intoxication was against him. defendant, required having we are found for arising there evidence and all fair inferences

to take the light oc to it.1 This collision from in the most favorable July 20, 9:30 m. at what is curred at about p. Flat, 32 miles north of Cedar called Buckhorn about driving City. sedan Plaintiff his Ford highway, with northward on the U. S. which is surfaced wide, referred to a two-lane about 20 feet blacktop, although line; highway no center defen there is marked being direction, in the dant’s feed truck was driven opposite Matheson, south, by is LaMar W. and Glen Garfield riding Though to recall other with him. he was unable following accident, events testi preceding seeing coming fied that he remembered truck south lights highway, toward him on the the center its overlapping by a distance which he said * “* * * * * * * * two, three, could be could be could

be four feet.” He stated that he drove on the shoulder of side of the highway ways for a until he road saw the abutment of a bridge hitting loom so that his alternatives were of up bridge, turning right large highway off the into a turning gully, oncoming or of toward the truck in an effort go bridge abutment, between it and which is what says only he he he did. He related that touched his brakes before there was neither the crash because time nor space in which to come to a stop. completely

Plaintiff’s car cleared the front end of the truck but collided with the left front corner of the truck bed, length car, which the full sideswiped of his it ripping length down almost the entire open of the driver’s side. Estate v. 1Toomer’s Union Pac. R. 121 Utah 239 P. 2d 163. front corner a on left was scarred bit The truck bed damaged little, but not otherwise back a pushed appreciably. driver, Matheson, nor truck his pas-

Neither defendant’s senger injured; the truck was were each testified that right road, far to the as driven on own as its side being both the wheels off the possible pavement, immediately crash; before and after the that the plaintiff’s very car them at Mathe- rapid rate approached speed. just son said that a moment before the crash the plaintiff’s him, is, car came over toward over on to the defen- highway. or dant’s side west having There were tire burns identified been made road, they on Ford side of the were but gouges highway in line with fresh in the on defendant’s side south of the tire burns. The first of these was two road; feet west from the center of the likewise raspberries, which had been knocked from the left side of defendant’s truck and highway, about the splattered were thickest on defendant’s, investigating or west side of the road. The officers’ evidence shows the middle of this smear of rasp- high- berries was about two feet west the middle of the way.

It is obvious that these two vehicles could not each have traveling litigants been on its own side of the road as the respectively eight contend. The defendant’s truck was feet (lacking inches).' wide Allowing two for over- its hang, if its were edge wheels on the west black- testified, as its top, only occupants about seven feet of its width would have been highway, leaving on the three feet west of Though the center of the road. the evi- conflict, dence is in clearly it is such as would support finding the defendant’s truck on kept its highway side of the and that the plaintiff’s car did not. Respecting the matter of intoxication: Plaintiff contends that the real evidence thereof was the odor of alcohol 464 taken.) The (No were nor other tests blood

on his breath. referring matter, concerning time to some this evidence collision, contention his shows and after before both mater- competent, The evidence admitted was correct. is not great To deal of it. and there was ial and persuasive, illustrative abstract portions: we avoid prolixity Scott, m., store Mr. Jack proprietor: About p. * * * *** so; intoxicated, very was much “[Watkins] bloodshot, tongue thick, eyes quite his was his conversation His were hardly up.” gablous character, he hold himself and could was a [sic] m., Tuckett, bakery Mr. Robert 5:30 to 6:00 operator: p. flushed, unsteady “very face that his was was plaintiff others, eyes glassy;” he Mr. Tuckett and his approached stag- greeted him with the remark “Hi stupid”; plaintiff gered car, window, .22 rifle to his stuck a out the pulled aiming left, them; they quickly. it at bolt back but m., Farnsworth,

6:30 Mr. Kent T. of Ted’s p. operator Bar: ordered a plaintiff beer. * * * tipped over, unruly, fights pick “He wanted to * * * finally necessary with other customers it was for me

to escort him out.” m., Hirschi, 8:00 to 8:30 Orissa bartender at Milt’s p. Lounge: in, drunk, came he too Circus she plaintiff refused to serve him. m.,

Around 8:30 Officer M. William Hills: p. picked up who under to be plaintiff, appeared influence of alco- hol; he told him he couldn’t drive his car. On plaintiff’s insistence George, that a friend would drive him to St. Hills, checking story, give Officer decided to car, “break” and him folly put tragically which is now too apparent. m., Pearce,

10:30 Ernest p. Highway State patrolman: When he arrived about an hour accident, after the belligerent in a state on the of his car “profaning was seat mind”; intoxicated. in his was opinion plaintiff m., Dr. L. Broadbent and his nurse: About 11:30 V. p. County Iron was Hospital; treated at plaintiff plaintiff belligerent Although admitting had and abusive. plaintiff drugged, had a brain concussion and been the doctor was of the that was intoxicated. opinion driving influence of

Since an automobile under negligence alcohol is an element of con be important sidered, concerning evidence intoxication ad Watkins’ missible if evidence not too remote in time such extending from the accident.2 evidence This from (about about 5:30 m. to m. about 8:30 an hour p. p. commencing accident) before the and about an hour after 11:30, at sufficiently it 10:30 m. to as late as was all p. bearing close in time to have a definite on his condition when the accident occurred. by

Plaintiff that this evidence complains as presented the defendant “was calculated to inflame and confuse the jury, and stifle their minds with and hatred prejudice singles toward him.” He testimony out particularly concerning Dr. Broadbent and his nurse and profane threatening gestures attitude uncooperative and his with being the .22 rifle certainly of such nature. It is true evidence, believed, that not, such if mildly, would it put very flattering have led the to a appraisal of the demeanor, Also, even his character. perhaps enough it, there was both from the witnesses above re- to, others, ferred may it have been cumulative if regarded the trial court should have so it. correctly

Plaintiff out that evidence points which is merely cumulative or which tends to facts not con- prove McVey, 2 740, Prewitt, 446; 59 Idaho Callahan v. 87 P. 2d Stuart v. 660; 143 Neb. County Maier v. Minidoka N. W. 2d Motor 61 Idaho 105 P. 2d 1076. excluded, court should do so and the troverted be only would be to purpose if its where admitted However, jury.3 there was and mislead the prejudice intoxication; denied and issue as to an cal evidence was apparently it. Part of this still denies degree intoxication, thereof not but culated to prove evening, value have which would probative earlier in the off the time the have worn as to whether would for a court to limit It would be difficult collision occurred. saying in effect to the of intoxication pro the proof issue, you can he was so ponent prove degree no drunker and after some certain drunk and established, further intoxication been refuse to permit had concerning testimony it. here refers to con evidence duct, which form statements and reactions of the plaintiff objective from an indication of his condition which the degree jury could determine the and the duration of his intoxication. Defendant cannot be of the of use deprived might merely this material evidence it a because have tendency eyes jury.4 to in the of the prejudice plaintiff This ruled in the D. was case of Bennett v. principle upon & R. Railroad G. Western Co.5where was made complaint exhibiting impaired stump “of such incidents the member anof [the amputated arm], difficulty a dramatic of the demonstration of re- * * spondent obtaining pocket in a wallet from his only because it was the claimed that of evi- purpose such jury, dence towas inflame the of the the fact of passions having the loss the arm been admitted. It was held that the evidence was for the facts purpose proving material by to be considered the and was therefore competent. n Again Woods,6 although case, v. State criminal a the same was principle It was contended approved. the S., Evidence, 166, page

3 31 C. J. 877. § S., Evidence, 186, page 4 31 J.C. § 907. 57, 325, 5 117Utah 213 P. 2d 329. 6 62Utah 220 P. 220. showing a blackened photograph presenting purpose body bed, and charred and burned bedclothes walls discovery shortly of her mur wife taken after defendant’s jury. der, and inflame passions was to arouse This court held: * * * inadmissible, though photograph was was it “The not verbally repetition physician of what had been described conveyed officers; may any which it not have information already given jury, been to the but not reason had not that would be a for its exclusion.” argues

Plaintiff that he made the best choice available to him under the and therefore intoxication circumstances could not have contributed cause colli- to proximately theory sion. His is as he observed the approaching crowding road, truck was over onto his side of the thing squeeze try the best for to him do to between bridge abutment, bridge it and the rather than hit gully. or turn off into the His hypothesis is based upon own of his interpretation evidence which not bound to follow. disagree

We do not with in statement in and of itself would not be toxication cause proximate accident; g., of an just sitting e. one could ever be so drunk car, causing in his any damage; the same slowly be if very true the car was driven where traffic, there were no obstructions or or out in some wide open such as a or space desert the salt flats. But it is the result of drunkenness in ability impairing the to use due care in the operation the automobile which becomes the proximate cause aof materially collision. Intoxication efficiency detracts from the brain, of the system nervous bodily them, and functions dependent on hinders muscular coordination, lengthens time, accuracy reaction and prevents judgment distance, space and speed. jury If the found driving Watkins was his car drunk, while as the evidence leaves little was, .doubt that he have crippled his care, is, that due use he couldn’t abilities so normal distances, the judge various the him unable

rendered cars, the truck between the space of the speeds respective related to the abutment, bridge own his position and furthermore, objects; and highway and those center ability and his he confronted to the situation his reactions guide limited car all would be his to properly operate direct been a could have thus which intoxication his Therefore, the matter of the collision. cause and proximate negligence as a intoxication, proxi- as to his both of his collision, to the submitted was properly cause of mate jury.7 the court refused

Plaintiff further complains jury right submitted to the to have the case accord him his request theory number the evidence.8 In his upon they three, jury if be told that he asked that or con- was not proximate found that intoxication disregard accident, tributing they should cause of the give intoxication. the court did not the evidence of While requested, such was the effect of the this instruction as given. Instruction number five informed instructions they if found from of the evi- preponderance immediately dence that before and at intoxicating time of the accident was under the influence of negligent, liquor, they that he was and that if further found that his condition was the sole or a con- proximate tributing collision, cause of the that he could not recover. instruction, The effect of this taken in connection with given, others was that would not be precluded recovery from because of intoxication unless found driving both that he was while drunk and that it resulted causing contributing in proximately or to cause the collision. 7 Emery Angeles Ry. Corp., v. Los App. 455, 61 Cal. 2d 143 P. 2d 112. 8 Morgan Bingham Stage v. Lines 160; 75 Utah 283 P. Hartley City, v. Salt Lake 41 Utah 124 P. 522. theory, what which is plaintiff’s in fact present This did to.9 entitled he was six, asked number

By requested plaintiff instruction jury the vehicles ap that as court to tell the the other, in the exercise if the each plaintiff proached striking care, the to avoid turned reasonable bridge either or that the defendant saw or the wash and have seen him do so and should * * * colliding opportunity to avoid “had a reasonable thereafter * * *, by turning right

with the automobile to the opportunity” avail of such the defendant failed to himself against causing accident, they the find should proximately negli- contributory defendant, they also found the unless gence. facts, just to

Under the there are two situations possible reasonably request which the above could be considered The first would be under the assumption apply. That on his own side of the road. keeping

plaintiff adequately covered other instructions circumstance is advising duty on its defendant’s to travel road and that failure to do would own side of the so be negligence, which, cause, with would coupled proximate recover. other would be under the permit plaintiff wrong came over onto the assumption road, side wanted the court to tell though wrong- that even he crossed over onto the highway, side of the he could recover nevertheless if the defendant saw or should have seen him and thereafter the exercise of care reasonable he had a “clear chance” to avoid the collision. This contention is answered analysis of clear “last chance” as contained in the case of Ogden Railway Compton v. Union and Depot Company,10 Mining Co., 9 Miller v. Utah Consolidated 366, 771; 53 Utah 178 P. Toone V. J. O. O’Neill Construction 40 Utah 121 P. 10. 10 120Utah 235 P. 2d 515. 479 in sections set forth doctrine as the we where approved case, instant of Torts. In the of the Restatement and 480 rest, and negligence come to would not have the plaintiff’s have been aware not possibly driver could defendant’s best, inattentive; under at even plaintiff’s so plaintiff evidence, we taking of the theory interpretation his and concurring negligence of the plaintiff have had would collision, resulting cir- under which in the and defendant recovery.11 no there could be cumstances instruction contem- if such our conclusion is Thus non-negligence then the on part plaintiff, plated adequately instructions, discussed, other as above would rights duties of the if it contemplated cover and parties; negligence request to on of the it was a the part plaintiff, theory of clear chance” which submit the case on the “last would not have been to the circum- applicable properly stances here. gives

It no to set forth herein the somewhat pleasure unsavory details about conduct but that has been necessary adequately done to the extent deemed to deal with the he attacks makes upon proceedings judgment. frightful injuries plaintiff naturally suffered in- great extreme for him. spire sympathy However this be, it jury, is not the prerogative trial court nor require of this court to someone him else compensate merely because in his behalf. He compassion, was af- forded to, jury what the law entitles him trial. In the any showing absence of of error which him from prevented having a full and fair presentation his case and determ- issues, ination of the the verdict must stand.

Judgment affirmed; costs to defendant (respondent). WADE McDONOUGH, JJ., concur. Light Ry. Oswald v. Utah & 39 Utah 117 P. 46.

WOLFE, Chief Justice.

I I not think the concur do except plaintiff interject requested intended “last clear instruction No. 6 suggests. case, chance” into the as Mr. Justice CROCKETT requested That instruction directs the to find for the true, they if find certain evidence to be plaintiff unless they guilty contributory “also find that the negligence”. requested Had the intended that chance”, instruction No. 6 embrace “last clear he would not have desired that be instructed to find for the they negligence contributory defendant if found inasmuch under the last clear chance doctrine a plaintiff negligence. contributory recover despite HENRIOD, Justice. concur, suggest

I but respectfully that plaintiff’s physical enough adding misfortune is painful thereto an element suffering of mental pain to follow our —sure documentation in a public, see, printed for all to opinion, details, certain possibly gossip, implying that the plaintiff ais drunk. In writer, opinion such documenta- quite tion unnecessary is deciding case, this and in the charity might interest of be omitted.

Case Details

Case Name: Watkins v. Utah Poultry & Farmers Cooperative

Court Name: Utah Supreme Court

Date Published: Dec 15, 1952

Citation: 251 P.2d 663

Docket Number: 7774

Court Abbreviation: Utah