Mingus v. Olsson , 114 Utah 505 ( 1949 )

Appeal by the plaintiffs from a directed verdict and judgment for defendant in an action by plaintiffs against defendant for the wrongful death of Glen H. Mingus, father of the plaintiffs.

The deceased sustained fatal injuries when struck by an automobile driven by defendant Olsson as he (decedent) attempted to cross Thirteenth East Street at or near its intersection with Westminster Avenue in Salt Lake City, at about 8:15 p.m. on the evening of February 23, 1945. This action was commenced by the surviving children of decedent, all but one of them being minors and acting by their guardian ad litem, Hazel Mingus, former wife of decedent and mother of plaintiffs. Venice Mingus, wife of decedent at the time of his death, was originally a party plaintiff, but it appears that she refused to cooperate in prosecution of the action and was dropped as a party plaintiff and by appropriate motion and amendments to the pleadings was joined as a party defendant. She was subsequently defaulted, and took no part in the trial of the cause, except as a witness. She is not involved in this appeal and the word "defendant" as used in this opinion shall be understood to refer to Earnest G. Olsson, the driver of the automobile involved in the fatal accident.

Thirteenth East Street runs north and south and is intersected at right angles by Westminster Avenue, which runs east and west. There was an arc light on the southwest corner of the intersection, and there was also a large tree which threw a shadow onto the highway. On the south side of the intersection there was an unmarked pedestrian crosswalk across Thirteenth East Street. Thirteenth East Street is 42 feet wide from curb to curb. It is a paved street.

At the time of the accident it was dark, but the road was dry, and the weather was clear. The arc light on the corner was burning.

Just prior to the time of the accident, decedent and his wife, Venice Mingus, were walking arm-in-arm easterly on the sidewalk along the south side of Westminster Avenue. They were starting out to do some home missionary work for the Latter-Day Saints Church, and decided to make their first call at a home on the east side of Thirteenth East Street, about a half-block south of the intersection with Westminster Avenue. While attempting to cross Thirteenth East Street, they were struck by a southbound automobile driven by defendant, and from the effect of the injuries thereby sustained, decedent subsequently died.

Police officers who investigated the accident found the body of decedent at a point in Thirteenth East Street 23 feet south of the south line of the unmarked crosswalk, and 18 feet east of the west curb line, or in other words, about 3 feet west of the center line of Thirteenth East Street.

[EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.]

At the trial of the case, after both parties had rested, the court granted defendant's motion for a directed verdict on the grounds that the evidence showed that: as a matter of law, plaintiffs' decedent was guilty of contributory negligence. Plaintiffs' motion for new trial was 1 denied, and plaintiffs prosecute this appeal. The first question for our determination is whether or not the evidence establishes, as a matter of law, contributory negligence on the part of the decedent. In determining this question, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the plaintiffs.

At the trial, defendant contended that deceased was not in the crosswalk, but at a point somewhat south of it at the time he was struck, and further contended that decedent failed to look for vehicular traffic on Thirteenth East Street.

As to whether or not decedent was within the crosswalk at the time of the collision, there is a conflict in the evidence. For purposes of this appeal, we must assume that deceased was in the cross-walk at the time he was struck. The crucial question is whether decedent failed to keep a proper lookout for approaching traffic.

Mrs. Venice Mingus, decedent's wife who was with him at the time of the accident, testified that as they stepped off the curb and started easterly across Thirteenth East Street, decedent was to her left or north; that he looked neither to his left nor right, but looked straight ahead as they proceeded across the street; that he said nothing to her about approaching traffic; that she did not see or hear defendant's automobile until it struck; and that they had proceeded about a quarter of the way (about 10 feet) across the street when they were struck.

Defendant testified that deceased and his wife were about 5 or 6 feet into the street when he first observed them; that they were then about 10 feet away from him; that he swerved his vehicle to the left and applied his brakes, but that he was unable to avoid striking them.

Mrs. Olsson, defendant's wife, who was a passenger in defendant's automobile at the time of the accident, testified that when she first saw deceased and his wife they were walking in a southeasterly direction, and that she could see deceased's back.

Lois Olsson, defendant's daughter, who was also a passenger in his automobile at the time of the accident, corroborated the testimony of her parents.

In connection with the above testimony, it should be noted that the crosswalk did not run due east and west, but slightly southeasterly and northwesterly, so that if deceased were walking within and parallel to the unmarked lines of the crosswalk, and were facing straight ahead in his course, his face would be turned slightly away and his back slightly toward the traffic approaching from the north.

Plaintiff relies on an asserted presumption that deceased was, at the time of his injury, in the exercise of due care for his own safety. It is true that in certain death cases, there is a presumption that decedent was in the exercise of due care for his own safety. But there is no room for such 2 a presumption where, as here, there was positive evidence not only as to the fatal accident itself, but to the conduct of decedent leading up to the fatal accident. Such a presumption must give way to the positive evidence adduced.

We must determine then, from the evidence and all the fair inferences therefrom, whether reasonable men must conclude that deceased was guilty of contributory negligence at the time he was struck by defendant's automobile. The testimony of Venice Mingus was to the effect that she knew that decedent did not look before stepping off the curb onto the street. She admitted that, in her deposition, taken several months before the trial, she had testified that she did not know whether or not decedent had looked before stepping off the curb, but at another point in that deposition she had stated that he was looking straight ahead at the time he stepped off the curb.

More convincing than the direct testimony that deceased did not look, is the further evidence that deceased neither said nor did anything to indicate that he was at all aware of the danger presented by defendant's approaching automobile. He seems to have been wholly unaware of its approach. 3 Certainly he did nothing either to warn his wife, nor to rescue either himself or her from their position of peril. On this evidence, it must be said as a matter of law that deceased either failed to look, or having looked, failed to see what he should have seen.

There can be no doubt that a pedestrian who undertakes to cross a busy street of a large city, without first observing for vehicular traffic is guilty of contributory negligence. And this is true, even though he may be crossing in a crosswalk, and have the right of way. In the recent case of 4, 5Hickok v. Skinner, 113 Utah 1, 190 P.2d 514, this court held that a motorist who had the right of way across an intersection, nevertheless had a duty to observe for traffic as he proceeded across the intersection. The rights of pedestrians to the use of the public streets are the same as those of motorists — neither greater nor less. Hence, the same general duties devolve upon them. A pedestrian crossing a public street in a crosswalk or pedestrian lane, although he may have the right of way over vehicular traffic, nonetheless has the duty to observe for such traffic. Clearly, decedent neglected that duty in this case. It follows that he was contributorily negligent as a matter of law. Of course we do not mean to imply that a mere glance in the direction of the approaching automobile would suffice. The duty to look has inherent in it the duty to see what is there to be seen, and to pay heed to it.

It has been suggested, but not urged, that the negligence of deceased should not be imputed to his heirs. In the recent case of Van Wagoner v. Union Pac. R. Co., 112 Utah 189,186 P.2d 293, on rehearing, 112 Utah 218, 189 P.2d 701, 6 we held that contributory negligence of deceased was available to the defendant as a defense in an action by the heirs for wrongful death.

The judgment is affirmed. Costs to respondents.