Poulsen v. MANNESS ( 1952 )

WOLFE, Chief Justice

(concurring specially).

I concur. Appellants contend that plaintiff should be held to have been negligent in law and the jury so instructed; that Topaz road being oil was built for lawful maximum speeds; that the Sugarville-Hinckley road was graveled and a minor and subordinate highway in comparison; that plaintiff stopped with his wheels three feet from the oiled portion of Topaz highway looking first east, where he could see objects 400 feet in that direction, then west where his view was very limited requiring him to proceed further toward the paved edge of Topaz highway to make another appraisement west; that while he made the appraisement west he failed to look again east until he was almost halfway across the paved portion of Topaz highway and. directly in the path of the defendant’s oncoming car which was then 40 to 50 feet away to the east.

In Spademan v. Carson, 117 Utah 390, 216 P. 2d 640, we said that it could not be held as a matter of law that the plaintiff motor cyclist was negligent because an interval of nearly 3 seconds elapsed in which he proceeded at the speed he was going (about 170 feet) before he reappraised the situation. In cases concerning traffic where the situation is in flux and deductions depend on the bases assumed, which may be a choice among permutations and combinations of factors, the trial court, unless only one combination of factors under any reasonable view of the evidence is permissible, should not find negligence as a matter of law.

In this case the front wheels of the plaintiff’s jeep were stopped at the south edge of the oiled portion of Topaz road when his observations were first made. Because of the close proximity of the sunflowers to the paved road, the jury may have determined that plaintiff proceeded as far forward as was reasonably prudent in order to make his observation of traffic on the Topaz road. After what was found to be an inadequate observation to the west because of vision interference, he shifted his gears to low and the car started from a stand still position and accelerated perhaps up to 10 miles an hour to reach the middle of the oiled portion of Topaz road where the second observation east was made. How many seconds that view to the west, the shift in gears, starting and traversing took would be an estimate and remain problematical. Whether plaintiff proceeded precipitately or cautiously is a jury question. Too late, it appears, he again looked east.

But it may hardly be urged that the court looking back over the actions of the plaintiff just preceding the collision, could, have said that he failed to act as a prudent man under the circumstances because he became aware of the oncoming car too late when the speed of that car might have been such as not to give a prudent man enough time to complete his appraisement to the west and then again to the east before he realized that the 400-foot stretch previously unoccupied was now fraught with danger.

In this type of case the speed may not only prevent a timely stop but lessen the interval which the other party has to reappraise a situation hitherto seemingly safe and in that way has a dual effect in causing a collision.

I have preferred to set out my views in detail and to make a refined analysis of this case rather than to endeavor to place it under a category headed by a previous case supposed to be similar in facts. What differentiates cases may be dissimilar but minor important facts. Such facts even though seemingly minor may give rise to significant differences. True, if eases can be pigeonholed according to their facts it may afford some guide to the applicable law. Here we have a case of a secondary rural road intersecting with a speed inviting highway. It appears that the road maintenance authorities permitted weeds to obscure the approaches to the intersection so as to prevent easy discernment of that intersection by travelers on the Topaz highway and which impaired the opportunity of travelers on the Sugarville-Hinckley road properly to appraise the situation on the Topaz road.

The city intersection collision is usually under circumstances quite different from those of this case. This case is unlike Bullock v. Luke, 98 Utah 501, 98 P. 2d 350; Hickok v. Skinner, 113 Utah 1, 190 P. 2d 514; Conklin v. Walsh, 113 Utah 276, 193 P. 2d 437; Gren v. Norton, 117 Utah 121, 213 P. 2d 356. It is different from Mingus v. Olsson, 114 Utah 505, 201 P. 2d 495, although there may be some broad principles of law stated in those cases applicable to intersection or for that matter any automobile collision case. It is the factual differences which arise out of human conduct that give birth to refinements in cases which differ-etiate them.

This case differs materially from Hess v. Robinson, 109 Utah 60, 163 P. 2d 510. True, it is assimilable to Lowder v. Holley, 120 Utah 231, 233 P. 2d 350, 353, except in that case two county roads intersected; not a country road with a speed inviting highway. This situation may come up more often in the future as cars emerge from country lanes or secondary roads onto through and cross continental highways where great disparity of speed may be the usual thing which on the roads intersecting in the case of Lowder v. Holley, supra, was not expectable. When that case was before this court, it was argued, and treated as an intersection collision. The two graveled roads on the outskirts of Maple-ton, Utah, a small rural community, were considered by this court to constitute what could be classified as an intersection; akin to an intersection of two city streets. There was no stop sign; the plaintiff slowed down to 5 or 10 miles per hour and then proceeded across. The evidence was sufficient to sustain a finding that the defendant was traveling at 50 miles per hour. I stated in my concurring opinion that because of this great disparity in speed, we could not hold the plaintiff guilty of contributory negligence as a matter of law. The plaintiff need only appraise the situation with regard to what the lawful rate of speed is upon the intersecting road. The instant case falls within a category which should be denominated a highway case. Here maximum lawful speed is permitted on the oiled highway and it appears undisputed that there was a duty upon the plaintiff to stop before attempting to cross the highway. In this situation we must expect the reasonably prudent ■person to look greater distances in order to ascertain that he can cross with safety. The speed of oncoming traffic being greater, the time for appraisement and decision must necessarily be shorter. This, of course, every motorist realizes.

Another way of stating it is that a motorist driving on a fast arterial highway need not treat every country lane, or relatively minor side road, as an intersection. He has the right of way for a much greater distance.

This difference in the physical nature of the two roads upon which the respective defendants were traveling distinguishes this case from that of Lowder v. Holley. For this reason, I think we cannot say in the highway class of cases, as did the court in Lowder v. Holley, supra, that the plaintiff’s failure to see the oncoming vehicle “could in no way have contributed to the accident.” I believe that what was meant by that statement was that the plaintiff was not in law negligent in looking only as far as he did.

HENRIOD, J., concurs in the result.