Farrell v. Cameron , 98 Utah 68 ( 1939 )

Since there is no bill of exceptions on this appeal the only facts before this court are those in the findings of the district court. It is urged by appellant that these findings will not support the judgment against the defendant appellant. The pertinent facts appear in Finding No. 2. The prevailing opinion holds the findings sufficient. To me they seem insufficient for two reasons:

1. The finding does not state that at the time defendant saw Cayias's car 100 feet distant he observed that the left wheels of said car were 12 to 16 inches to the left of the center line of said highway; neither does it state that the defendant should have observed that the wheels of Cayias's car were over the center line. It is elementary that Cayias's car, being over the line, could not give rise to a duty in defendant to turn out for him unless the defendant either observed the position of the Cayias car or should have observed it. It does not appear from the finding that defendant came under any duty to turn out. It is found that Cayias was on the wrong side of the road. But this collision occurred at night when headlights were necessary to highway visibility. It does not appear that the highway was straight in the vicinity of the collision, and if it were not it would be difficult to determine whether an oncoming car was on the right or the left side of the road. It should not, therefore, be assumed that the defendant observed that the Cayias car was on the wrong side of the road, and without such finding or assumption no duty could have arisen, at the earliest, until defendant had such notice. Cook v. Standard Oil Co., 15 Ala. App. 448,451, 73 So. 763; Blashfield, Cyclopedia of Automobile Law, Permanent Edition, Volume 2, page 57, § 914.

2. Both the findings of fact and the prevailing opinion imply that a duty in the defendant to turn farther to the right arose the instant defendant saw Cayias's car. Such is not the law. One who drives on the right side of the highway is entitled to assume, when he sees an oncoming driver on the wrong side of the road, that the other will return to the proper portion of the highway and thereby avert a collision, if there is ample opportunity to do so and nothing to apprise him that the oncoming driver has no such intention. Baker v. Zimmerman, 179 Iowa 272,161 N.W. 479; Travers v. Hartmann, 5 Boyce 302, 28 Del. 302,307, 92 A. 855; Whitworth v. Riley, 132 Okla. 72,269 P. 350, 59 A.L.R. 584, 587; Paton v. Stealy, 272 Mich. 57,261 N.W. 131; James v. Caroline Coach Co., 207 N.C. 742,178 S.E. 607; Clark v. Southwestern Greyhound Lines, 148 Kan. 155,79 P.2d 906; Kress v. Roush, 50 Ohio App. 376, 198 N.E. 491; Berry on Automobiles, 6th Ed., 240. The rule is frequently coupled with its corollary that this assumption becomes inoperative when it appears that the oncoming driver cannot or does not intend to return to his right side of the road, and the other driver was aware or should have been aware of that fact in time to avoid the accident. Luther v. Pacific Fruit ProduceCo., 143 Wash. 308, 255 P. 365, 367; Stuart v. McVey,59 Idaho 740, 87 P.2d 446; Hatch v. Daniels, 96 Vt. 89,117 A. 105; Cook v. Standard Oil Co., supra; Blashfield, Cyclopedia of Automobile Law, Permanent Edition, Volume 1, page 586, § 787, Id., Volume 2, page 60, § 919; Huddy, Cyclopedia of Automobile Law, Vol. 3-4, p. 187.

The Vermont court in Hatch v. Daniels, supra, thus stated the rule at pages 93, 94 of 96 Vt., 117 A. at page 107:

"One thus driving an automobile along a public highway, who sees a car approaching on the wrong side of the road, has, at the outset, a right to assume that it will observe the law of the road (G.L. 4705), and seasonably move over to its right so as to pass without interference; and he may proceed on this assumption until he sees, or in the circumstances ought to see, that it is unwarranted. * * * But this presumption must not be persisted in after the actor knows facts showing that it will not be true. So when this plaintiff saw, or ought to have seen, that this car would not get out of his way, he was bound to look out for himself, and to exercise the care of a prudent man, not only to avoid injuring others, but also to protect himself from injury."

Blashfield states the rule and supports it with authorities, as follows (Permanent Edition, Volume 2, page 60, § 919):

"A motorist has a right to assume that the driver of a vehicle coming from the opposite direction will obey the law, and to act upon such assumption in determining his own manner of using the road. A driver therefore, proceeding on the right side of the traveled way, may assume that the driver of a vehicle approaching on the same side, or on his left-hand side, will do all that a reasonably prudent person, under all the circumstances, would do to avoid a collision, which ordinarily would be to yield half the way, or to turn out in time to avoid a collision, and that such driver will not force him, in violation of the statute or ordinance, or the law of the road, to turn from the part of the road on which he is lawfully driving * * *.

"These assumptions may not be indulged in, however, after he sees or ought to see, from the situation of the cars or highway or the conduct of the approaching driver, that they are unwarranted. In other words, the duty of an automobile driver who is on the right side of the street, to stop or take other precautions to avoid a collision with an approaching vehicle, only arises when by due care he discovers that another on the wrong side of the street cannot or will not himself turn to the right to clear his way."

Other cases make plain the rule that a duty to turn farther to the right or off the road does not arise immediately upon seeing an oncoming car on the wrong side of the road, but only after it appears, or would appear to a reasonable man, that the oncoming car cannot or will not so remedy its course as to avoid collision. O'Malley v. Eagan, 43 Wyo. 233, 2 P.2d 1063, 77 A.L.R. 582, 592; Dircks v. Tonne, 183 Iowa 403, 406,167 N.W. 103; Sumner Co. v. Fisher, 28 Ohio App. 219, 162 N.E. 639;Albright v. Joplin Oil Co., 206 Mo. App. 412, 229 S.W. 829. As to the point at which the duty to attempt to avoid the car which is on the wrong side arises, see Hatch v. Daniels, supra; Sumner Co. v. Fisher, supra; O'Malley v. Eagan, supra; Whitworth v. Riley, supra; Dircks v. Tonne, supra.

In O'Malley v. Eagan, supra [43 Wyo. 233, 2 P.2d 1068, 77 A.L.R. 582], the court quoted and applied the rule laid down in the Albright case, as follows:

"The fact, therefore, of itself that the deceased was in the street, on the wrong side thereof, when there was no appearance of his being oblivious to the oncoming truck, would not place a duty on the driver of the truck to slacken his speed or change his course, so long as he was on the right side of the street, where he belonged, and within the law and the traffic rules, until he reached a place where it was apparent to the driver of the automobile that the deceased was unconscious of his oncoming danger, or, although duly alive to the danger, he was unable to get to a place of safety."

Blashfield also states (Permanent Edition, Volume 1, page 586, § 787):

"The driver who is on the right side may assume, on the first appearance of the other vehicle, that it will change its course, and the particular point of time when he is no longer warranted in indulging such assumption is for the jury in an action for injuries resulting from a collision."

Thus it is apparent that the district court applied the rule of duty wrongly; its findings assume that a duty to avoid the oncoming driver arose immediately upon seeing him, whereas at that time the defendant was entitled to assume that Cayias would move, and the duty to try to avoid him arose only after it became reasonably apparent that Cayias could not or did not intend to get off the wrong side of the road. On a new trial the question when that notice became chargeable to defendant should be resolved by instructions if tried to a jury and by a finding of fact if to the court.

There is, of course, no absolute right in a driver of an automobile to continue on the right side of the road in disregard of approaching drivers who are on the wrong side. All rights are relative. All drivers owe a duty of being heedful. So if a driver on the right side drives heedlessly or deliberately into a car on the wrong side of the road, such an act constitutes at least negligence. Rice v. Lowell Buick Co., 229 Mass. 53,118 N.E. 185; Hoover v. Reichard, 63 Pa. Super. 517; Blashfield, Cyclopedia of Automobile Law, Permanent Edition, Volume 2, page 41, op. cit., § 897. But there is no finding that defendant drove deliberately or heedlessly into Cayias or in disregard of him; and in the absence of such a finding the judgment cannot be upheld on such a theory.

Just why the court found that defendant was blinded by the lights of an oncoming car is not plain, since the judgment was still for the plaintiff. The very fact that he was blinded by those lights might be the reason that he did not realize that the Cayias car was so close or that it was not going to resume its right lane. For aught that appears the very fact of blinding lights may have been the reason he could not ascertain that the Cayias car was on the wrong side of the road. There is nothing in the finding which shows that Cameron did or should have seen the Cayias car partially on the wrong side of the road. A finding that Cameron saw the car at 100 feet is not a finding express or implied that he saw it partially on the wrong side of the road. All of us at night see cars coming toward us on the road yet that fact alone does not show that we saw any one of them on the wrong side, even coupled with the evidence that such car was partially on the wrong side. And if Cameron did not see the Cayias car on the wrong side of the road the only way the finding can be sustained is to hold that he not only had the duty to turn out and save the plaintiff from the results of Cayias's negligence but had the duty of so driving his car even while on his own side and against lights so as to discover oncoming cars on the wrong side of the road. This seems to me to be stretching Dalley v.Midwestern Dairy Products, 80 Utah 331, 15 P.2d 309, to an intolerable extent. It would be holding that a driver had the duty to slow down until complete visibility was restored in order to discover whether there were cars partially on the wrong side of the road. Then if he discovered any it would be his further duty to watch the over-lapping car to determine whether it could or in all probability would resume its right lane.

The duty to slow down to such speed as will allow the car to be stopped within the distance in which its lights reveal objects in its path, as I understand it, is a rule of speed in respect to objects or persons which may be on the road and does not relate to the general duty of driving with care in respect to objects already revealed. I cannot agree that drivers who are on their own side of the road, who are partially blinded by lights of oncoming cars and thus occupied greatly in keeping in their own lane have the duty to slow down until they can discover whether oppositely moving cars are on the wrong side. If all cars, in moving fairly close together in oppositely moving processions, are compelled to slow down to a point where they must make sure, because of impaired visibility due to the oppositely moving lights, that such oppositely moving cars were on their own side of the center line, traffic would be impeded to an intolerable extent. This only more forcibly illustrates why a driver occupied under such conditions with keeping in his own lane may assume that oncoming drivers are doing the same and will remain in their lane.

All that Mr. Justice PRATT states in his concurring opinion regarding the law is freely admitted. But the opinion does not seem to consider the real point in the case to wit: that the findings nowhere state that the conditions were such that Cameron should have realized that the Cayias car was not going to resume its proper position. There is nothing in the findings from which it could be inferred that the "time had come when a reasonably prudent person would realize that he, who is on the wrong side of the road, is not going to resume his proper position." If a finding that Cameron saw the car does not include a finding where he saw or should have seen it in relation to the middle line, how can a duty arise to realize that it would not return to its own side? A duty of one to turn to the right to avoid collision arising after one did realize or should have realized that another could not or would not resume his proper position, of course, must be conditioned on the fact that such one knew or should have known such other was out of proper position. The findings are insufficient to show the duty. Furthermore, even if we can imply from the findings that Cameron not only saw the Cayias car but saw it partially on the wrong side of the road, the fact that he observed the Cayias car 100 feet away was not sufficient to show that a prudent man should have realized that the Cayias car would not resume its right position. Otherwise a finding that he saw it 2000 feet away might be sufficient.

Since the findings of fact do not support the judgment, the judgment should be reversed and a new trial awarded in pursuance of defendant's motion therefor.

LARSON, J., dissents.

McDONOUGH, J., being disqualified, did not participate herein.