Woodhouse Ex Rel. Woodhouse v. Johnson

CROCKETT, Chief Justice:

Plaintiff sued to recover for injuries suffered by two-and-one-half-year-old Gregory James Woodhouse when the defendant Norma Johnson backed her car into him in a driveway near his home, at 1421 East 8850 South in Sandy, Utah. After a trial a jury returned a verdict of no cause of action. It is neither unnatural nor unusual that the plaintiff, having failed to persuade the jury, is dissatisfied with their verdict and now seeks to upset it and obtain a new trial,

In view of the contentions made to upset this judgment, it seems necessary to restate and emphasize that upon appeal it is our duty to assume that the jury believed the evidence which supports their verdict; and for that reason, to review the evidence and whatever inferences can fairly and reasonably be drawn therefrom in the light most favorable to it.

The afternoon of June 11, 1965, Mrs. Johnson met a friend, Una Jordan, at the Sandy school and gave her and her children a ride home. As they drove eastward on 8850 South approaching the Jordan residence, Mrs. Johnson did not see any children except two older children who went past on bicycles. Mrs. Jordan says she did see two small children on the sidewalk and a group of children playing on the lawn just west of her driveway. Mrs. Johnson made her left turn north into the Jordan’s driveway and stopped a couple of feet beyond the sidewalk. The Jordan children got out of the car and ran into the house. After the two ladies had talked for about five minutes Mrs. Jordan got out on the right (east) side, talked for a minute or two longer and left.

Mrs. Johnson says that before starting to back her car, she looked backward, first over her right shoulder, then over her left shoulder, and seeing nothing in the way, started to back her car slowly out of the driveway, meanwhile continuing' to look backward over her left shoulder. When she had backed a very short distance (about four feet) she heard a child’s cry and stopped instantly. It was then that for the first time she saw a little girl about three standing near her left rear fender. She moved her car forward about the same distance (about four feet), stopped and got out to see what happened. Near the back of her car she found little Gregory hurt, with blood appearing in the area of his right ear. She took the child in her arms until his mother arrived with a blanket. Meanwhile she had called to Mrs. Jordan to phone for an ambulance. It was later found that he had suffered a fracture of his skull and other injuries which may permanently affect him.

The only eyewitness who saw anything of these small children near the rear and left (west) side of the Johnson car near the time of the impact was Anita Brown, a 13-year-old baby sitter at the Barnes house, about 75 feet west of the driveway. She testified to these observations: that when she first saw Gregory he was under the car in front of the left (west) rear wheel (that would be between the front and rear wheels) ; that she saw his brown Keds sticking out from underneath; that when the car went backwards, she did not actually see the child hit, but that as soon as it went forward, he quickly came out from underneath the car and went around behind it.

It is the defendant’s contention that while she was talking to Mrs. Jordan these very small children must have come to the rear of her car where, even when she looked, she could not see them and thus was unaware of their presence or any indication of it. The evidence can reasonably be viewed as supporting that contention, and from their verdict it is apparent the jury so believed.

The principal error urged by plaintiff for reversal of the judgment is the giving of Instruction No. 18 to the effect that the law recognizes unavoidable accidents, which it defined as one which occurs in such a manner that it cannot justly be said to have been caused by negligence. In considering the propriety of that instruction, and whether giving it constitutes reversible error, the overarching and controlling question is whether the parties were given a fair trial and had the issues of fact and the applicable law presented to the jury in a clear and understandable manner. This invites our attention to several aspects of the problem: the objection which was taken, the accuracy of the instruction, and whether it was prejudicial.

Included in plaintiff’s numerous objections to the instructions was this: “Plaintiffs except to the giving of Instruction 18 in that the law in the State of Utah no 'longer recognizes unavoidable accident, the same having been merged into non-negligence.”

The court remarked on this objection, asking counsel why he had not mentioned it in their discussion in chambers. Counsel stated: “I wasn’t hiding anything. I am making a record based on my recollection of having read a case some place.” Upon the court’s inquiry as to whether any Utah case has ever so held, counsel was amable to refer to any such case. (Incidentally, there is none.) The court stated: “Because I wouldn’t oppose the time to check the Supreme Court decision before deciding.” Nevertheless, counsel neither made any request for delay, nor •offered any assistance to the court, but proceeded with taking further exceptions.

The vagueness and uncertainty of the belated statement of counsel, offering no assistance to the court, ignoring his suggestion as to delay to ascertain the law, leaves a great deal to be desired under our rule which requires that a party “must state distinctly the matter to which he objects and the grounds of his objection.” ¹ We appreciate that just how serious this would be in any given case may depend upon the instruction involved and the likelihood of its effect upon the trial. We have noted it as a part of the total picture here and pass on to matters of more vital importance in this case.

Our review is directed to the issue presented to the lower court:² that “the law in the State of Utah no longer recognizes unavoidable accidents.”

We digress to observe that we offer no defense of the practice sometimes followed by defense counsel of tossing a requested instruction on unavoidable accident into the hopper with numerous other form defense instructions in practically any type of negligence case. Such an instruction should be given with caution and only where the evidence would justify it. But to declare categorically that there is no such thing as an unavoidable accident and that the instruction should never be given does not square up with the law, nor with the practical realities of life.³ It is obvious that there are some accidents, i. e., unusual and unexpected occurrences, which result in injury and which happen without anyone failing to exercise reasonable care; and when this is so the accident is properly classified as unavoidable insofar as legal causation or the imposition of liability is concerned.⁴

The authorities do not, and of course could not, justly say that there is no such thing as an unavoidable accident. The fact that such an instruction is sometimes erroneously given in cases where it is not properly applicable is no good reason for banning it entirely. That argument is reminiscent of the old saying about burning the barn to get rid of the rats. The more basic reason given for criticizing such an instruction is that it is a duplication. Inasmuch as the jury are elsewhere advised that the defendant’s negligence must be proved, and that in the absence of such proof of negligence he is not liable, it is unnecessary to state again that if the accident was unavoidable because not caused by negligence, he is not liable. We appreciate the merit of this criticism in cases where it is applicable, which undoubtedly includes most ordinary accident cases. But even the cases which disapprove of the instruction as error recognize that whether it is ground for reversal depends on the circumstances of the particular case.⁵ In that connection it is important that at the time of the trial of this case it had never been adjudicated in this state that the giving of an instruction on unavoidable accident was prej udicial error. The established law was to the contrary, although it is true that cautions have been expressed about such instructions.⁶ As-' suming it to be the repetition of an idea and that it is best to avoid repetition where possible, the mere duplication of an idea in the instructions is not reversible error. If it were, very few if any sets of instructions could be sustained as errorless. If any such radical change in our rulings as here advocated is to be put into effect, fairness would seem to dictate that the change be prospective rather than ex post facto.'⁷

Analyzing the situation here presented in the light of what we have said about the questioned instruction, and correlated to another established rule, that the parties are entitled to have the jury instructed concerning their respective theories of the case,⁸ we are not persuaded that the trial court committed error'which •would justify reversal in giving it. If the accident happened as the defendant contends, having looked to the rear before moving her car, and continuing to so observe as she backed slowly, being wholly unaware of the presence of the small children, or of anything to alert her of their presence, there is nothing further in the exercise of reasonable care that she should have done to have avoided the accident; and thus from her point of view, the accident would be unavoidable, and there could be no great harm in so advising the jury.

Ferreting the wheat from the chaff in the plethora of requests from the contesting parties and fashioning instructions covering all aspects of such a case in a manner fair to both sides poses such a problem for the trial judge that losing counsel can usually point to some claimed error to use as a basis for argument that the jury must have been misguided because he did not win. It is true that the instructions here are not without some duplication. But the important thing insofar as fairly protecting the plaintiff’s rights is concerned, is that they clearly submitted the issue of the defendant’s claimed negligence in failing to keep a proper lookout, and failing to yield the right of way to a pedestrian (Nos. 17 and 21) told the jury that it was the defendant’s duty “to be vigilant at all times, keeping a lookout for traffic,' pedestrians and other conditions reasonably to be anticipated by an ordinary, prudent driver in like position.” (No; 19);' and that “the driver of a vehicle within a residential district emerging from a driveway shall yield the right of way to any pedestrian” (No. 20).

Without going into further detail, the instructions impress us as having adequately presented the issues of fact and the applicable law in a manner fair to both parties. This observation, and what we have said above concerning instructions generally, applies to the plaintiff’s further argument that the trial court should have split the defendant’s duty.in two and instructed on her possible negligence separately in going backward and going forward in her car.

This court has many times given expression to the importance of safeguarding the right of trial by jury and the solidarity that should be accorded a verdict after the parties have been given a fair trial. Evenhanded justice requires that this apply to all alike: to defendants, as well as to plaintiffs. From what we have said herein it should be plain that in our opinion the plaintiff was accorded his entitlement of a fair trial, and that nothing has been shown which would justify overturning the judgment.⁹

Affirmed. Costs to defendant (respondent).

CALLISTER and HENRIOD, JJ., concur.

1 . Rule 51, U.R.C.P.

2 . That we review on appeal only issues raised in the lower court, see Huber v. Deep Creek Irrigation Co., et al., 6 Utah 2d 15, 305 P.2d 478.

3 . See extensive annotation on Unavoidable Accident Instraction, 65 A.L.R.2d 12, et seq., documenting cases from most of the states as approving the giving of such an instruction in appropriate cases, but also noting the caution to be observed where inappropriate and that refusal to give such an instruction is not error.

4 . For numerous statements using varying phraseology to this effect, see 1 C.J.S. 443 and 38 Am.Jur. 647 and cases therein cited.

5 . E. g., see Butigan v. Yellow Cab, 49 Cal. 652, 320 P.2d 500, 65 A.L.R.2d 1, perhaps the leading and most cited case for this view, where the court so stated; see also statement in City of Phoenix v. Camfield, 97 Ariz. 316, 400 P.2d 115 and other cases in annotation at 65 A.L.R.2d 12, et seq.

6 . See Porter v. Price, 11 Utah 2d 80, 355 P.2d 66; Wellman v. Noble, 12 Utah 2d 350, 353, 366 P.2d 701.

7 . As to prospective effect, see Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360, cited in Rubalcava v. Gisseman, 14 Utah 2d 344, 384 P.2d 389.

8 . Webb v. Snow, 102 Utah 435, 132 P.2d 114; McDonald v. Union Pacific Railroad Company, 109 Utah 493, 167 P.2d 685.

9 . See statement in Hales v. Peterson, 11 Utah 2d 411, 360 P.2d 822.