Brower v. Moran Paving Co. , 58 Utah 349 ( 1921 )

WEBER, J.

In his complaint the plaintiff charged that defendant, in pursuance of a contract with the State Road Commission of Utah, dug a certain trench across Main street at its intersection with First North street in Smithfield, Utah, and that defendant left said trench in an open, unguarded and dangerous condition during the nighttime of October 16, 1919, and thus to remain open and exposed without any reasonable protection and without any light or signal to give reasonable warning against accident to travelers along said Main street; that on the night of October 16, 1919, while plaintiff was riding as an invited guest in an automobile owned and operated by one Ray Vannoy, the said automobile ran into said trench, and plaintiff was injured. The allegations charging defendant with negligence were denied in the answer, which also charged plaintiff with contributory negligence. The jury returned a verdict in favor of plaintiff, assessing his damages at $950. A motion for a new trial was denied. Defendant appeals, and urges as error that the record contains not a scintilla of evidence tending to show that the accident was caused by any negligence upoh the part of the defendant, and that the respondent’s own negligence was the sole cause of the accident.

The evidence, in substance, was that on October 16, 1919, the street paving, being done by defendant under contract with the State Road Commission, had been completed and opened for traffic, but there remained to be completed a culvert across the highway or Main street at the intersection of First North street in Smithñeld. Paralleling the pavement on' the east was a railroad track, and there was about 30 feet of unpaved roadway between the railroad track and the east line of Main street. An excavation for a culvert had been dug, and extended from the railroad on the westerly end about 30 feet, according to the testimony of plaintiff’s witnesses — 18 feet according to the testimony of defendant’s foreman. The trench was from 18 inches to 2 feet deep, about 2 feet wide, and the excavated material had been thrown up along the south side of the trench forming a mound along that side. On the evening of October 16, 1919, a trestle about 12 feet in length was placed on the mound of this trench. A lantern was placed on the trestle, but the evidence indicates that there was no light in the lantern at the time of the accident. According to the testimony adduced by plaintiff the trestle was placed at the west end of the trench, and the east part of the trench extending beyond the trestle was, at the time of the injury, left open and unguarded. The intersection of streets where this trench had been dug is the business center of Smithfield. A lighted electric arc light was hanging at the intersection of the streets, and there were lights in the bank about 100 feet south of the trench. On the opposite corner was a store with large display windows that were illuminated. Adjoining this store was a drug store that was well illuminated.- Another store was on the northwest corner whose windows also contained electric lights. At abo.ut 8 -.15 or 8:30 p. m. respondent left a restaurant, which was about 25 feet from the trench, in a Ford car, as the guest of Ray Vannoy, who owned and drove the car. Vannoy testified that when he left the restaurant he drove south; that he-“made a circle around the center of the street, ’ ’' and was looking directly ahead. A car was coming from the south and one from the north, both on the pavement, and the reflection of the lights revealed the trestle. He had driven up and down this road almost daily while it was being paved. He said:

“I knew there were ditches and trenches at various places, and was accustomed to seeing such barricades before trenches, and as soon as I saw -the barricade I knew there was a trench there. I didn’t stop to see how wide or long, but concluded it was the same length as the barricade. In turning around I drove far enough so that I was sure that I would clear the barricade about 4 feet.”

The wheels of the car went into the trench. The substance of the testimony of W. F. Brower, the plaintiff, was that he had gone to Smithfield with Vannoy at the latter’s invitation; that after leaving the restaurant he saw a barricade ; that he knew there was danger there, a hole or a trench, or something, but he did not know that the trench extended about 16 feet east of the barricade. He said nothing to the driver. “I saw he was going around the trestle nicely, and felt he was driving out far enough to be plenty safe. Just as the car was dropping in I glanced to see what was beyond this barricade, and I saw a hole we were dropping into.” Plaintiff was thrown forward through the wind shield, and his face cut and nose broken.

There was conflict in the testimony as to the amount of light ,as to where the trestle was placed, as to the length of the part of the ditch left open and unguarded, and as to some other details, but substantial testimony was adduced in support of all the allegations of plaintiff’s complaint.

Tbe evidence pointing to appellant’s negligence was sueb that it cannot with reason be said that but one inference can reasonably be drawn from the facts.

In Hunter v. City of Montesano, 60 Wash. 489, 111 Pac. 571, Ann Cas. 1912B, 955, cited by appellant, the street had been barricaded from curb to curb. When Hunter, a pedestrian, was injured, it was raining. The wind was blowing. His eyesight was bad. The rain was beating against his glasses, and he was looking at the lights, in a store window, and, while walking diagonally across the street that had been closed, he ran against a plank, one end of which rested upon a keg of nails, the other upon a pile of bricks or rubbish. •He fell down and Was injured. There was no question in that case regarding the sufficiency of the barriers. Hunter testified that he knew the street was not in condition to be traveled by teams. The'court said that—

“It is apparent that Main Street outside of the sidewalk area was properly barricaded and that plaintiff was walking in reckless disregard of the unsafe condition of the street.”

In that and other cases relied upon by appellant the barriers erected were obviously sufficient.

Barriers erected to prevent danger to travelers or to warn the public of the dangeous condition of a street must be at least reasonably sufficient for that purpose. In the present case it was a question for the jury’s decision as to whether the trestle was sufficient in length, and as to whether it was negligence to have from 18 to 30 feet of the trench without a barrier or guard of any kind.

Whether plaintiff was guilty of contributory negligence is not free from substantial doubt. The question of contributory negligence was for the jury and not for the court to decide, because different minds might reasonably arrive at different conclusions as to whether plaintiff was culpably negligent.

We think the issues were properly submitted to the jury, and that the court committed no abuse of discretion in overruling appellant’s motion for a new trial. The judgment is therefore affirmed, with costs.

CORFMAN, C. J., and GIDEON, THURMAN, and FRICK, JJ., concur.