*1 621 which reasonable minds could complains the refusal conclude Plaintiff give requested jury in did. We find no such circum- trial to a court stances exist here. a area that this was residential struction had a to exercise that the driver (respon- Affirmed. Costs to defendant presence of children reasona for the care dent) . expected in the street or near bly to necessary that the area. It is not HENRIOD, such an J., ELLETT, C. identify possibility and mention each MAUGHAN, JJ., court TUCKETT concur. fairly and separately. The situation was by instructions.

amply covered the court’s

They definition of included the standard driver must exercise

negligence: that the a reasonable degree care which person under the circum

prudent would ; regard must due and that he have

stances road, existing for the conditions Jay THOMAS, himself, A. and Jessica potential thereon, the actual and traffic May through Thomas, guard- infant, her lookout, hazards; keep proper a must Jay Thomas, Appel- ian A. Plaintiffs and of her car. lants, control v. is said about In addition to what COMPANY, UNION PACIFIC RAILROAD is the jury, there prerogatives of Hansen, corporation, Payne and Carol court re proposition that the trial further Respondents. Defendants and arguments this case and viewed No. 14224. with his decision to connection counsel Supreme Court of Utah. This trial. deny the motion for new April 6, 1976. recognized that the trial always has court discre has considerable latitude denying of a motion granting tion his trial in accordance

for a new justice re the ends of as what

judgment rulings should thereon

quire; and that his appears that his overturned unless

not be reasonable clearly transgressed

action of discretion.3

bounds ruling

This falls within we pur

have heretofore announced:

pose parties trial is to afford opportunity present

full and their fair

evidence and their contentions and have in dispute issues them deter between jury; and that that has

mined when accomplished

been we will disturb jury and the

determination made is there

trial court unless it shown prejudicial error

was substantial and trial,

prevented a fair or that there upon

substantial basis the evidence See 69 P. 416 Gordon v. Provo Geary Utah 235 Cain, ; 2d P.2d 430.

deaths of Penna Lee Thomas Janna Thomas, Lee in who were killed an auto- mobile collision an when automobile in they riding ran the were side of into moving riding Decedents train. were in being operated by an automobile the de- Payne plain- fendant Carol The Hansen. tiffs Company claim that both the Railroad operator and the the of automobile were guilty of negligence. trial granted the Payne motion Carol Hansen summary entered a in judgment her ground favor the and for the reason plaintiffs’ against that claim the the de- fendant Hansen by was barred Utah plaintiffs Guest Statute. The are here seeking a reversal. an

On March being automobile by Payne driven Carol Hansen collided grade Union Pacific train at a crossing. Lee Penna Thomas and Janna Thomas, daughter Lee the 22-month-old Thomas, and Jay pas- Penna Lee A. were sengers in the Penna automobile. Lee Thomas and the infant child were killed in the collision. Penna and the Lee Thomas by child Lee Thomas were survived Janna Jay Thomas, daughter A. infant May Thomas. The trial court Jessica Payne found that the conduct of Carol Hansen did not constitute wilful miscon- duct. plaintiffs assert that

State as Guest Statute unconstitutional being protection equal in violation of the clauses of both federal and state con During years stitutions. recent adopted by large number statutes Howard, Howard, B. Lewis Jackson years states over the have been under as Petersen, Provo, appellant. & for legisla sault in well the courts as Goodsell, Steven A. Salt Lake tures. The statutes a number states Union Pacific. courts, have been stricken down Ivie, Ray Young, Provo, H. of Ivie & repealed legisla several have been for Hansen. constitutionality tures. The of the act was before this court the recent case of Can

TUCKETT, Justice: Oviatt,1 upheld non v. wherein this court wrongful This is a constitutionality death action statute. wherein plaintiffs opinion seek recover We are now of that re-exam- (Utah) 520 P.2d 883. so, leg- commentary been dubbed nor is the be left to the of the act should ination more Solomonic than the assertion islature. legislature away thereby took “an exist- However, is another facet of there ing remedy injury.” for an requires further attention. our act which ig- completely The thesis the dissent U.C.A.1953, 41-9-1, provides Section *3 legal principles such nores well established part as follows: against any injury by as defenses such as- person guest accepts as a a Any who sumption risk,1 contributory negligence, vehicle, moving upon any of any in ride striking statutory limitations down certain Utah, public highways the the state action, governmental immunity causes of re- riding guest as such while so cases, timely those claims are not where injury, an shall have ceives or sustains incidents, filed, inability to mutual combat against owner right recovery the ipsa inju- loquitur, show cause a under res person responsible for the or driver or God, occurring injuries ries acts of operation of such vehicle. trespassing, bumping into other while each [Emphasis street, wounds, fall- added.] on main self-inflicted cliff, ing injuries even the off a under language law it From of the the comparative negligence the statutes where appears passenger in order to clearly that a heavily percentage lies negligence more accept a in the guest ride become a must against claimant, myriads —and of oth- the acceptance act of The host’s automobile. noncompensableinjuries. er guest to requires part an act the of the on interpretation of the dis- unrealistic The It accept or to it. either ride refuse the compen- provides the constitution sent that is appears an therefore that there becomes per- his injury done “every for to sation pas as not the sue of fact to whether or pronouncement, not son” confuses such accepted In senger ride. this case examples, mentioned only with above the 22-month-old goes saying without remedium,” jus, ibi the maxim “ubi but of such a tender Lee Thomas was Janna righting wrong, a do that has to with accept a ride and age that she not could defensible, and not with is not guest become a within could therefore not compensability sim- wronging right a meaning guest as above statute injured. Oth- may ply because someone be set forth. State, homeowner, mythical erwise, a is to the below This case remanded to a respond to have oyster or else would plaintiffs’ with directions reinstate the entering who, breaking and burglar, wrongful as to the claim for the death his fundament. also breaks judgment of Lee Thomas. Janna dis- in the plugged conclusion part the court is affirmed to that below off might most hitchhikers sent take dealing wrongful of the case with the would be a deter- highways, but likewise costs death of Penna Lee Thomas. No might generous be for those who rent awarded. grant request enough want to suffering heart at- transportation of one HENRIOD, (concurring). Chief Justice tack, seeking succor drowning man of a number of say passing In from a boatman concurring, I nonetheless wish may need handicapped persons who dissenting opin- concurring I think million willing erstwhile overgeneralization. lift, It indulges ion would Samaritan, prefer to who would its a declaration that but forewords thesis with Good gamble take over the portends a next traveler guest “monstrous let the statute liability. impudence,” historically has of tort —which quite in 1. A similar to that reflected statutes. doctrine CROCKETT, (concurring, with In the case of Ashwander v. T. V. A.6 Justice concurring opinion, comment). his Brandéis Justice exposition very good makes a of this doc- Any change statute which for, points trine. He the reasons out and a be a has been our law should .since employed courts, number of means legislative There is a basis matter.1 support of their reluctance intrude class, treating guests, as a reason for social doing into the he legislative field. In so passengers. paying different There from quoted authority Cooley, the eminent Con- are areas in the law numerous where (8th Ed.), p. stitutional Limitations 332: depends person one owes another upon anyone It must be the status between them. This evident to power relationships, ranges family through legislative to declare a from enactment void strangers outright judge, is one enemies. One which the conscious of fallibility examples differing de- of the human judgment, obvious *4 grees trespasser, will duty exercising to a a licen- shrink from in any owed see, guest, where he can conscientiously a social and business invitee and with regard due property.2 unjust on one’s There is no dis- and official oath de- cline responsibility. crimination in a statute which makes clas- legitimate purpose sifications for a and all It is for foregoing reasons that I people in the class same are treated concur with the main opinion on the equally.3 represents judg- This statute ground stated; and that register my I dis- ment legislature of our that it serves a use- agreement appellant’s with the contention purpose providing ful for the welfare that the court guest should declare the peace preserving good and order statute unconstitutional. society. I nothing see therein which any provision ELLETT, contravenes constitutional or J., concurs in the ex- views power legislature pressed which exceeds the of the opinion CROCKETT, J. objective. to enact laws to further that MAUGHAN, (concurring and Justice To be considered correlation dissenting). universally recognized princi- above is the part With that opinion, the main ple judiciary should not reach into permits which proceed, the action to I con- legislative prerogative and strike down cur. I part dissent from opin- a statute if the case can be decided on oth- ion, which fails to strike guest down the grounds.4 er This emanates from the real- statute. ization that one of the im- best most guest statute was unconstitutional portant aspects system govern- of our day enacted, it was since, it has been ment, preserve and which tends to its now, and it will continue to be long so strength continuity, is the mutual re- 1, Article 11, Section Constitution of respect straint and its three branches: Utah, does, reads as it to wit: executive, legislative judicial, each All courts open, shall be prerogatives integrity has for the and every person, for an injury done other.5 to him in his judicial 5. That legislature the idea of 1. That it should be left to the restraint is not change new to this writer see the law see Davis 1 comments in v. Provo cases some years back, g., 244, e. Stickle Utah 2d v. Union 265 P.2d 415. Pacific Co., 477, R. 867; Cypert 122 Utah 251 P.2d 2. For treatment such distinctions see Washington County District, School 24 341, Sections 333 to Restatement of Torts 2d. 419, Utah 2d 473 P.2d 887. Mason, 501, 3. State v. 94 Utah P.2d 920. 78 288, 345, 481, 6. U.S. at 297 56 S.Ct. at plethora 4. stating For of authorities so 80 L.Ed. 688. see 16 Am.Jur.2d Constitu- O.J.S. p. tional Law reputation, person, property or shall have law,

remedy due course of

shall be administered without denial or

unnecessary delay; person shall and no defending prosecuting or barred from State, any this him- tribunal in

before counsel, any civil cause to which

self a party.

he is blatantly statute is contrary to provision

this so much so it is a monstrous

impudence. 1935,1

In legislature attempted away

take existing remedy injury,

leaving place. Such, nothing its it had power prior All up- do. Utah cases

holding statute should be over- ruled; and an announcement of the stat- Nemelka, Carl of Nemelka & Coles- J. made; ute’s nullity before more dam- sides, City; plaintiff Salt Lake ap- age Utah, hapless is done to the citizens of pellant. because of the invidious discrimination vis- Wilson, Randon W. Edward Mc- *5 J. ited unsuspecting pre- on this citizens Donough, and Jeffrey R. Taylor, Jones, tended law. Waldo, Holbrook McDonough, & Salt respondents.

Lake for defendants and HENRIOD, Chief Justice: Appeal from a judgment favor Canyon, defendant, lessor and damage brought by Herring, Lessee, suit fail- ure of the comply lessor to with the terms HERRING, LTD., Corporation, having of a lease a Utah to do with used lot car Appellant, Plaintiff facility. Canyon. Affirmed with costs gravamen of this property MERCURY, INC., CANYON-LINCOLN primarily employed selling used Corporation, Delaware and R. W. Saf garage The lessee cars. wanted to sublet ford, Respondents. Defendants and repair shop. area for a body paint He No. 13974. was not allowed rent area unless Supreme repairs Court satisfy Utah. substantial were made to city thereup Herring fire ordinances. 31, March 1976. Canyon re on make the demanded refused, pairs. Herring re The latter left, keys turned the to file this dam alleged age suit of con based breach tract, assigning as a impossibility reason therefor, citing Rudy1 as au Sine v. thority. being purpose

The main the lease cars, body operate a sell used and not to shop, case is repair paint the Sine Chapter 1935, (1972). 1. Laws 2d P.2d 299 Section 1. 27 Utah