Schweitzer v. Harvey Stone, S & I Trucking Co. , 13 Utah 2d 199 ( 1962 )

CALLISTER, Justice.

These are personal injury and property damage actions arising out of a rather involved automobile accident. . Florence Schweitzer filed suit for personal injury against Harvey Stone, S & I Trucking Company, Lloyd Higginbotham, Fred Sullivan and Western Auto Transport Company. Lloyd Higginbotham, Western Auto Transport Company and Fred Sullivan cross-complained against Harvey Stone and S & I Trucking, who counter-cross-claimed. Ivan Sheffy filed a complaint in intervention against Lloyd Higginbotham, Western Auto Transport Company and Fred Sullivan.

During the trial of the case, Western Auto Transport, Higginbotham and Sullivan settled the Schweitzer claim before the case was submitted to the jury; which returned a verdict in favor of Schweitzer against all defendants, with the exception of Sullivan, who was dismissed out of the case as a party defendant by the trial judge. A verdict of $4,500 was returned in favor of Sheffy on his complaint in intervention against Higginbotham and Western Auto Transport. A verdict in the sum of $8,000 was .returned in favor of Sullivan on his cross-complaint against Stone and S & I Trucking Company. The jury further found against Stone and S & I Trucking Company on their counter-cross-claims.

Stone and S & I appealed from the judgment in favor of Schweitzer and against them, but this appeal was dismissed, upon settlement out of court, by stipulation of those parties. Therefore, the Schweitzer aspect of the case is not now before us.

Stone and S & I appealed from the judgment against them and in favor of Sullivan. However, this appeal has also been dismissed upon stipulation of the parties and by order of this court.

Neither Stone nor S & I have appealed from the adverse judgments on their counter-cross-claims, which leaves only the appeal of Higginbotham and Western Auto from Sheffy’s judgment to be considered.

The occurrences giving .rise to the causes of action here involved are as follows:

At approximately 10:30 p. m. on April 20, 1957, three trucks and trailers, belonging to S & I Trucking Company and loaded with drilling mud, were proceeding eastward on U. S. Highway 30. As they approached a point approximately 17 miles east of Echo Junction in Summit County, Utah, Harvey Stone, an employee and driver of one of the S & I units, attempted to pass the lead S & I truck and trailer. At this point the trucks were on an uphill grade and the highway was divided into two eastbound traffic lanes and one westerly traffic lane. Before he could pass the lead truck, Stone’s unit sputtered and the motor quit. He coasted uphill and as far as possible to the right until his truck and trailer came to a standstill. The night was dark, but the highway was comparatively straight at this point and the stalled truck was visible for §ioths of a mile to the west and over 900 feet to the east.

The last S & I truck, driven by Ivan Sheffy, passed the stalled unit and parked about 400 to 500 feet farther up the highway as far to the right as possible. Sheffy set the brakes, left the head and clearance lights on, switched on the turn indicator, and walked back to the stalled truck to see if he could be of assistance. Upon reaching the truck he stood on the highway and put his head in the left window of the cab. Stone, believing his truck had run out of gas, had switched over to the auxiliary tank and was trying to start the engine. Sheffy endeavored to help him.

At this moment a Western Auto Transport truck, loaded with new pickup trucks and driven by Lloyd Higginbotham, crashed into the rear of the stalled S & I track with resultant property damage and injuring Stone, Sheffy and Fred Sullivan, who was asleep in the cab of the Western Auto Transport truck.

The impact of the collision threw a pickup truck from the Western Auto Transport onto the road and into the westbound traffic lane. Neither Stone nor Sheffy saw or heard the approach of the Western Auto Transport truck.

A few moments later an automobile driven by John Schweitzer, with his wife, Florence, as a passenger, came over the hill from the east, swerved to the left to miss the pickup truck, and crashed into the two wrecked trucks.

Among other things, the evidence was conflicting as to whether there were lights on the stalled truck and whether it was partially into the center lane of traffic or entirely in the outside lane.

With respect to their appeal from the judgment in favor of Sheffy, the appellants, Higginbotham and Western Auto Transport, first contend that the lower court erred in refusing to direct a verdict in their favor or, in the alternative, refusing to grant a new trial for the reason that the answers of the jury to special interrogatories were inconsistent with its general verdict.

At the conclusion of the evidence the court instructed the jury generally on the issues of. the case and, pursuant to Rule 49, U.R.C.P., submitted to the jury a series of interrogatories in which it was directed to make specific findings. The pertinent questions and the answers thereto by the jury were:

“QUESTION 1

“(A) Was Harvey Stone negligent by allowing the gasoline of one tank to become exhausted before switching to the auxiliary gasoline tank?

“Answer: Yes.

“If so, was such negligence a proximate cause of the collision, (a) Between the two trucks involved? ■

“Answer: Yes.

“(b) Between the Schweitzer car and two trucks involved?

“Answer: Yes.

' (B) Was Harvey Stone negligent in failing to remove the S & I truck from the travelled portion of the highway?

“Answer: No.

“If so, was such negligence a proximate cause of the collision,

“(a) Between the two trucks involved ?

“Answer: No.

“(b) Between the Schweitzer car and the two trucks involved?

“Answer: No.

“(C) Was Harvey Stone negligent in failing to have lights on or flares about the S & I truck immediately prior to the collision between the two trucks ?

“Answer: Yes.

“If so, was such negligence a proximate cause of the collision,

. “(a) Between the two trucks- involved ?

“Answer: Yes.

“(b) Between the Schweitzer car and the two trucks involved?

“Answer: Yes.”

“QUESTION III

“(A) Did Ivan Sheffy negligently expose himself to a hazard which he knew or in the exercise of a reasonable care should have known might result in harm to him by assisting Harvey Stone to start the stopped truck when there were no lights on said truck withotit first putting flares out to warn other motorists of the presence of said truck?

“Answer: Yes.

“If so, was such negligence a proximate cause of the injuries which Ivan Sheffy received?

“Answer: No.

“(B) Did Ivan Sheffy fail to keep such a lookout for his own safety while he was assisting Harvey Stone as would have been kept by a reasonably prudent person under the same circumstances ?

"Answer: Yes.

“If so, was such failure a proximate cause of the injuries to Ivan Sheffy?

“Answer : No.” (Emphasis added.)

In answer to other interrogatories the jury found Higginbotham negligent in failing to keep a proper lookout, in failing to keep his truck under adequate control, and in driving with the headlights on low beam. The jury found each of these acts of negligence to be a proximate cause of the collision.

The inconsistency of which Higginboth-am and Western Auto Transport complain is that the jury found that Stone was negligent in failing to have lights on or flares about the stalled truck and that this negligence was a proximate cause of the collision; whereas, they found Sheffy negligent in exposing himself to the hazard of assisting Stone start the stalled truck when it was unlighted and without first putting flares out, and in not keeping a proper lookout, but that none of these acts of negligence was a proximate cause of his injuries.

While not conceding an inconsistency, respondent Sheffy argues that even if the 'findings as to him be deemed inconsistent with the findings as to Stone, nevertheless, he is entitled to have a jury pass upon his lawsuit, and that as long as the evidence supports the findings and judgment as to him, that judgment may not be overturned. In support of this position, -respondent Sheffy cites cases from Arkansas ¹ and Idaho.² These cases stand for the proposition that since consistency is not required of different juries in separate actions, there is no requirement of consistency in consolidated actions tried to the same jury. There can be no dispute that had the Stone and Sheffy actions been tried separately, the inconsistent verdicts could not be upset merely because of the inconsistency.

That the findings and verdicts as to Stone and Sheffy are inconsistent there can be no doubt. There is no reasonable basis for distinguishing between their actions. Both were engaged in the same act, at the same time and place. Since the jury determined that Stone’s failure to have his lights on and his failure to put out flares constituted negligence, which was a proximate cause of the collision, it is impossible to reconcile this finding with the finding that Sheffy was negligent in being about the truck in the absence of lights without first putting out flares, but that this negligence was not a proximate cause of liis injuries.

We are not constrained to follow the reasoning of the Arkansas and Idaho cases and are more persuaded by the views contained in Detrixhe v. McQuigg,³ an Oklahoma decision, wherein that court had this to say regarding the reasoning of the Arkansas case:

“ * * * The court’s [Arkansas Supreme Court] conclusion in that case is based upon the premise that since consistency is not required of different juries in separate actions being tried separately, there is no requirement of consistency in consolidated actions tried to the same jury. Our answer is that the court did not attach sufficient significance to the basic difference involved — only one jury is hearing the evidence and it cannot at the same moment believe that two totally irreconcilable and inconsistent facts existed.”

Furthermore, in the instant case the jury was given special interrogatories to answer, whereas, in the Arkansas and Idaho cases this was not done, the juries merely returning general verdicts. The answers given by the jury and their verdicts point out clearly, and amplify, the inconsistency. We believe that this situation is one contemplated by Rule 49(b), U.R.C.P.,⁴ and that the trial court erred in denying the motion for a new trial.

In the instant case this court cannot decide which of the inconsistent answers or verdicts is correct, and therefore, must hold them both bad. However, Stone did not appeal from his adverse judgment and it is thereby conclusive of the issues tried with .respect to his cause of action. This leaves before us only the judgment of Sheffy, in his favor and against Higginbotham and Western Auto Transport, which, being based upon inconsistent answers and verdict, must be vacated and a new trial granted.

Judgment in favor of plaintiff in intervention, Ivan Sheffy, and against defendants, Lloyd V. Higginbotham and Western Auto Transport Company, is reversed and remanded for new trial. Costs awarded to defendants.

McDonough, j., concurs.

1 . Brown v. Parker, 217 Ark. 700, 233 S.W.2d 64.

2 . Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430.

3 . 316 P.2d 617.

4 . “ * * * When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers and verdict or may order a new trial.”