Hickok v. Skinner , 113 Utah 1 ( 1948 )

The prevailing opinion fairly reflects the evidence, and I accept the statement of facts as therein detailed.

This case is fraught with considerable difficulty, arising largely out of conflicting principles of law. The first is the familiar principle that one must exercise reasonable care for his own safety. The other is that a person having a right-of-way over a public thoroughfare ought to be protected in the exercise of that right, and is not bound to anticipate an unlawful or negligent act on the part of another. Generally there is no duty on the part of a driver exercising his right of traverse on that portion of the street set aside for him as a right-of-way or as one of his travel lanes to avoid the negligent encroachment of another on it until he becomes or should become aware that the other is not going or cannot return to his own side of travel or yield the right-of-way to the one to whom the law gives it.

I am in accord with the general rule laid down in the prevailing opinion that a driver who has stopped at a stop sign at the entrance to the intersection of a through highway, and who has observed and analyzed the traffic situation and determined that he may safely enter the intersection, and that he has the right-of-way to proceed across the intersection, has not fully discharged his duty of due care. As he proceeds across the intersection there attends upon him a duty to be aware of the relative positions and speeds of vehicles approaching from all directions, and he must recurrently reobserve, and reappraise in light of the constantly changing conditions of a fluid traffic situation.

The prevailing opinion holds that plaintiff here was guilty of contributory negligence as a matter of law, because he did not take a second look in the direction of defendant's approaching automobile, after he (plaintiff) started up from the stop sign. I am not prepared to go so far. If after leaving the stop sign, plaintiff had proceeded across the intersection oblivious to all approaching traffic and all potential danger, then I might concur in the prevailing opinion. But that is not what plaintiff's evidence shows, and for purposes of this case, we must accept that evidence as true. Plaintiff testified as follows:

"Q. Weren't you watching for this car that was coming? A. I wasn't watching for the side car because everything was clear, and there was cars coming from the north, and I was watching them.

"Q. You were watching the cars coming from the north? A. I didn't want a car to turn in front of me. It was my place to watch."

I think the majority opinion fails to give any weight to this testimony. Plaintiff had analyzed the traffic situation and had concluded that defendant's westbound vehicle was so far distant as not to constitute any hazard at all. He, therefore, determined that due care on his part required that he give his undivided attention to the traffic approaching from the north. As it turned out, his judgment was bad. But I think that it was a question of fact, and not of law, whether or not a reasonable man might not have concluded as plaintiff did here, and have proceeded accordingly. Stated differently, whether or not plaintiff's conduct was consistent with due care was a question on which reasonable minds might differ, and was therefore for the trier of fact.

The rule laid down in the prevailing opinion is bound to lead to difficulties, if it is attempted to be applied in future cases having similar, but not identical, facts. To illustrate: In this case it is held that plaintiff was contributorily negligent as a matter of law, when he looked at a point 20 feet in front of the intersection but did not look thereafter. Suppose plaintiff had looked 10 feet past the stop sign? At the time he entered the intersection? Halfway across the intersection? Failure to look at which of these positions makes plaintiff guilty of contributory negligence as a matter of law? Where is the line to be drawn? At what point does the issue of plaintiff's contributory negligence cease to be a question of law for the court, and become a question of fact for the trier of fact? Obviously no exact standard can be laid down. The various factors of each case (width of intersection, relative speeds and positions of the vehicle, conditions of visibility, etc.) must be to a large extent determinative. The holding of the majority should be limited to the facts of this case. Future cases must be decided on their own facts.

Where an intersection is controlled by a semaphore, the rights of various streams of traffic to proceed and the duties of other streams of traffic to halt are clearly indicated by the various colored lights of the signal. Little or nothing is left to human judgment. But where an intersection is controlled only by stop signs, or is uncontrolled, the rights of drivers to proceed and their duties to halt are to a large extent determined by human judgment. Where a stop sign requires a driver to stop before entering the intersection, such driver must halt and yield to all traffic "within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed." Sec. 57-7-138(b), U.C.A. 1943. Whether an approaching driver is so close to the intersection as to constitute an immediate hazard is largely a question of human judgment, and will depend upon a number of factors, e.g. width of intersection, speed of approaching automobile, visibility conditions, whether the road is dry or slippery, and many other factors. And since the relative rights and duties of drivers approaching an intersection such as this depend to a large extent upon the exercise of human judgment, I am inclined to the opinion that the question of whether or not the judgment exercised by the drivers was reasonable, is a question of fact for the jury. I recognize that there may be some cases where the conduct of one driver or the other or both was so palpably unreasonable and inconsistent with due care that all reasonable minds would agree that such conduct was negligence. In such a case, the question ought to be taken from the jury and resolved by the court as a matter of law. But I do not think that this is such a case, especially in view of plaintiff's testimony that he considered defendant's automobile so far away as to constitute no hazard, and he felt that it was his duty to concentrate his attention on the southbound traffic on West Temple Street. See Lefevre v.Roberts, 250 Mich. 675, 230 N.W. 917 (followed in a long line of Michigan cases, the latest of which seems to be Pelham v.Keip, 306 Mich. 500, 11 N.W.2d 219); Ellis et ux v. Olson,139 Wash. 351, 246 P. 944; Day v. Polley, 147 Wash. 419,266 P. 169; Garrett v. Byerly, 155 Wash. 351, 284 P. 343, 68 A.L.R. 254; Hill v. Fresno County, 140 Cal. App. 272,35 P.2d 593; and Peters v. Hockley, 152 Or. 434, 53 P.2d 1059, 103 A.L.R. 1347.

Even if it be conceded that plaintiff was contributorily negligent as a matter of law, the question of whether or not such negligence was a substantial causative factor in producing the collision was one of fact. Even if plaintiff had taken a second or third look, such might not have revealed to him that defendant would not yield the right-of-way to him, until too late for plaintiff to avert the accident. This case is somewhat similar toHess v. Robinson, 109 Utah 60, 163 P.2d 510. In that case plaintiff was driving on a through highway and did not see defendant's ambulance approaching from the right. The ambulance went through the stop sign and crashed into plaintiff's automobile. The trial court held both parties negligent as a matter of law, but submitted the case to the jury on the question of whether or not plaintiff's contributory negligence was a proximate cause of the damage. From a verdict and judgment for plaintiff, defendants appealed. We affirmed. Although this court divided on the question of whether or not plaintiff was guilty of contributory negligence as a matter of law, we agreed unanimously that the question of proximate cause was one for the jury. I recognize that the facts of this case are somewhat different from those in the Hess case, but the underlying reasoning should be the same.

For the reasons above stated, I dissent.

There remains the interesting problem raised by the fact that this was not a jury case, and the judge sat as trier of the facts. If no motion for nonsuit had been interposed, anddefendant had presented no evidence which could detract from theduty of plaintiff to include within the scope of his attentionthe progress of the defendant's car and the conduct of its driverduring his course toward the intersection, the court would have found, as a matter of fact, that plaintiff was guilty of contributory negligence. This conclusion is inescapable, since the court found as a matter of law that plaintiff was guilty of contributory negligence. Hence it might be argued that plaintiff could not be prejudiced by the order of nonsuit, since he would have surely lost on the facts anyway.

The above italicized qualification states the reason why there may be a difference between the fact situation presented to the trier of the facts before and after defendant has presented his case, which would make it incumbent on motion for nonsuit to determine whether there was contributory negligence as a matter of law. That there may be only a faint probability or the barest possibility that the defendant's case would introduce any element which would negate or lessen the force of any inferences of contributory negligence which the fact finder might otherwise find does not affect the right of plaintiff, on motion for a nonsuit, to have the court determine whether there is contributory negligence as a matter of law without regard to the court's opinion on the question of contributory negligence as a matter of fact.

I would reverse the judgment of the district court and remand the case for new trial.