McAllister v. Bybee ( 1967 )

HENRIOD, Justice:

Appeal from the dismissal of plaintiffs cause of action in a jury case. Affirmed, with no costs awarded.

The plaintiff alighted from her car alongside the curb of a Kanab City, Utah, street, and was injured when she fell over something in the unpaved, weedy area between the curb and the sidewalk. With unusual candor, months later, she said she did not know what caused her to stumble and fall. Finally, however, she attributed the accident to a cement anchor used many years before to hold up a pole supporting a canopy in connection with a service station, which, with the pole, had been removed many years before. Mrs. McAllister had known of the cement anchor which was about six or eight inches above the ground level, and had seen it there for many years.

Viewing the facts in a light most favorable to anybody, we feel that plaintiff did not establish a factually possible compensable case that could be given to a jury except by way of conjecture and speculation. Even had there been no speculation as to whether she tripped over the cement obstruction, she had known of its existence for many years, that it was in plain sight on a clear day,— and there to see if anyone but looked.

This court consistently has said that under such circumstances there would be a defense on the ground of contributory negligence. One of our last pronouncements in that respect is found in Whitman v. W. T. Grant Co,¹ which pretty well is dispositive of this case when it says:

The plaintiff is confronted with the basic proposition that when there is a hazard which is plainly visible, ordinarily one is charged with the duty of seeing and avoiding it. And if he fails to do so, it is concluded that he was negligent either in failing to look, or in failing to heed what he saw.²

It is unnecessary, therefore, to discuss any possible liability of Kanab City, the owners of the frontage property, or their lessees, on any theory of negligence or the '’question of assumption of risk.

CALLISTER, TUCKETT and EL-LETT, JJ., concur.

1 . 16 Utah 2d 81, 395 P.2d 918 (1964).

2 . See also: Eisner v. Salt Lake City, 120 Utah 675, 238 P.2d 416 (1951) and cases cited therein; Johnson v. Syme, 6 Utah 2d 319, 313 P.2d 468; Coombs v. Perry, 2 Utah 2d 381, 275 P.2d 680 (1954); Smith v. Bennett, 1 Utah 2d 224, 265 P.2d 401 (1953); Cox v. Thompson, 123 Utah 81, 254 P.2d 1047 (1953); Mingus v. Olsson, 114 Utah 505, 201, P.2d 495 (1949).