Smith v. Lenzi

BATES, District Judge. Plaintiff brought this action to recover damages for injuries to his person and to his automobile in an accident which happened at the intersection of Ashton avenue with Highland drive in Salt Lake City, Utah. It is the plaintiff’s claim that the accident was caused by the failure of the defendant to observe an ordinance of Salt Lake City. On the other hand, the defendant contends that the accident was caused by the plaintiff failing to observe the right of way laws of the state of Utah. The ordinance which plaintiff pleaded, proved, and relied on provides: Section 1880X1. “The following streets in Salt Lake City are hereby designated as through highways and the chief of police is hereby directed to erect at the entrance thereto from intersecting streets signs notifying drivers of vehicles to come to a stop before entering or crossing such designated highways to wit: Highland Drive from Twenty-first South Street, south to City limits. * * * Section 2. “It shall be unlawful for the driver of any vehicle to fail to stop such vehicle in obedience to a stop sign at the entrance of any through highway designated in Section 1 of this ordinance. “The sign to be erected by the chief of police shall have upon it in large letters at least eight inches in height, the word ‘Stop’ and in smaller letters the words ‘Thru Highway.’ ” The right of way statute of this state, so far as material here (Comp. Laws Utah 1917, § 3978, as amended by chapter 47, Laws Utah 1923), reads: *365 “An operator of a vihicle shall have the right of way over the operator of another vehicle who is approaching from the left in an intersecting or connecting highway and shall give the right of way to an operator of a vehicle approaching him from the right at an intersecting or connecting highway. “An operator shall reduce speed at crossings, connecting or intersecting of [all] highways. * * *” Ashton avenue runs directly east and west, and intersects with Highland drive. Highland drive runs nearly north and south, bearing a little to the southeast. Just before the accident, defendant had driven south on the west side of Highland drive. He turned into Ashton avenue and out again into Highland drive fntending to return north on Highland drive. The jury may or may not have found from the evidence that the defendant stopped at the stop sign placed on the south side of Ashton avenue, as required by the ordinance relied on, immediately before re-entering onto Highland drive. As the defendant entered Highland drive to return north, plaintiff approached the intersection from the north, driving about 25 miles per hour. Each of the parties saw the other just as defendant was entering the intersection; the plainitff being at that time not less than 35 feet nor more than 70 feet away from the intersection. The defendant was then traveling east about 10 or 12 miles per hour, and could have stopped his car almost immediately. He hoped to get across, and stepped on the gas. Just before the front end of the car reached the car tracks near the center of Highland drive, plaintiff’s car crashed into him, striking his car near the center. A verdict was returned in favor of the plaintiff, from which the defendant appeals. The court gave the following instruction to the jury: “The plaintiff has introduced in this case an ordinance of Salt Lake City and marked Exhibit A. You are instructed that this ordinance designates Highland Drive from 21st South Street south to the City limits as a through highway for traffic moving north and south along said Highland Drive. By said ordinance it is made unlawful for *366 any driver of a vehicle to fail to stop such vehicle in obedience to a stop sign at the entrance of said through highway before said driver enters upon said highway. “You are instructed that it was the duty of the defendant, under said ordinance, when approaching said Highland Drive from Ashton Avenue on the night in question, before entering said Highland Drive, in the act of turning his car around, to stop said car and to look and listen, and to remain standing so long as the danger of a collision with passing or approaching automobiles on said Highland Drive was reasonably to be apprehended. “That is to say that under the circumstances of this case, if you find by a preponderance of the evidence that the relative position of the plaintiff on said Highland Drive and the defendant, at the time the defendant says he stopped his car before entering said Highland drive from Ashton Avenue, and the speed at which the plaintiff was driving his automobile, were such that a collision was reasonably to be apprehended by a reasonable and ordinarily prudent person in the same or a similar situation as the defendant then was, if the defendant’s car was moved forward, then, under such circumstances, it was the duty of the defendant to have remained standing and surrendered the right of way to the plaintiff.” The defendant, in his request No. 6, requested the court to give the following instruction, but the court refused to give it as requested or in substance, either in whole or in part: “The Court instructs the jury that an operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left of an intersection or connecting highway and shall give the right of way to the operator of a vehicle approaching him from the right at an intersection or connecting highway. Therefore the Court instructs the jury that the law gives the driver of an automobile the right of way over the driver of an automobile approaching from the left at the intersection of public highways, and it therefore follows as a matter of law that upon the happening of a collision between two automobiles at such an intersection, the driver of the automobile on the left is necessarily guilty of negligence if the vehicles approached the crossing so nearly at the same time at such rates of speed, that if both proceeding, each without regard to the other a collision or interference between them is reasonably to be apprehended in such case the law gives to the person having the right of way, the right to continue his course and it is the duty of the other to yield that right of way.” *367 We think the effect of the instruction as given was to submit the case to the jury upon the theory that the ordinance supersedes the statute; that is, to create a conflict between statute and ordinance where none exists. The only requirement of the ordinance is that a person stop at the stop sign immediately before entering the arterial or through highway. To so construe such a provision as to require the person entering a through highway from the right to remain standing and yield the right of way to persons approaching from the left on the arterial highway, if they are traveling at such a rate of speed that a collision is to be reasonably apprehended, and without imposing on such persons approaching from the left the statutory duties to slow down at intersections and to yield the right of way to persons approaching from the right, is to make the ordinance superior to the statute. It is the duty of courts to so construe statutes and ordinances as to give effect to every word used. Where two statutes can be so construed as to allow both to stand, that construction will be adopted. 1 Beach, Public Corporations, §§ 94, 95. If the respondent stopped immediately before entering Highland drive, he complied with all the requirements of the ordinance. From that moment he was free to move without restriction, so far as the ordinance is concerned. As he approached Highland drive, after stopping, the statute gave him the right of way as against automobiles coming in the direction the respondent was traveling, and made it the duty of such persons approaching from the left to yield the right of way. But these rights and duties were only relative, and must be applied in the light of the conditions existing at the time. Aside from any statute or ordinance, it was the duty of both parties to use such caution as a reasonably prudent person would have done in entering the intersection. The speed that the cars were approaching, their distance from the point of intersection, the ability of the respective drivers to see, were all factors to be considered by the jury in determining whether appellant or respondent was en *368 titled to the right of way. This construction gives force and effect to every word used in the ordinance, and does not in any manner conflict with the terms of the state statute. Neither do we think that the effect of this construction is to emasculate the ordinance as claimed by respondent. The ordinance is not so far-reaching as he might wish, but it does- have a very salutary effect in the regulation of traffic. When a person stops immediately before entering an arterial highway, he will necessarily enter the intersection more slowly. The rate that he is moving, the speed of the arterial traffic, and its frequency, together with any other surrounding circumstances, must all be considered, together with the statute giving to the person approaching from the right the right of way in determining whether at a given instance he should enter the stream of traffic. The respondent urges that appellant’s request was properly refused for being argumentative, because it contained the following language: “It follows as a matter of law that upon the happening of a collision between two vehicles that the driver of the automobile on the left is necessarily guilty of negligence.” The language quoted, standing alone, does seem to be argumentative, but, when considered with the language following in the same request and in the same sentence, it is not at all clear to the writer’s mind that the request is subject to that criticism, or that it is anything more than a concrete statement of the law applicable to the facts of the case as the jury might well have found them under the evidence. Blit, if the request is subject to the criticism offered, the fact remains that it called the attention of the court to a rule of law that was applicable to the case, and upon which the jury should have been instructed. We have frequently held that the statute requires the court to instruct upon the law applicable to the case. Upon *369 a question so essential to a proper determination, and so clearly within the issues made by the pleadings, it is the duty of the court to instruct. This duty cannot be avoided because a request fairly calling the attention of the court to the principle of law may also contain some language in addition to the statement of the legal principle which may be subject to the criticism of being argumentative. Sutton v. Otis Elevator Co., 68 Utah 85, 249 P. 437; Comp. Laws Utah 1917, § 6082; Everts v. Worrell, 58 Utah 238, 197 P. 1043. The jury should have been instructed that it was the duty of the plaintiff to yield the right of way to the defendant as the two approached the intersection if it would have reasonably appeared to a reasonable and prudent man under the circumstances existing and the relative speed at which they were driving that a collision was to be apprehended. The jury should also have been instructed that if, under such conditions, the plaintiff failed to yield the right of way, and that such failure on his part proximately contributed to the accident, he could not recover. That, in substance, is what the defendant requested. The appellant demurred to the plaintiff’s complaint, setting out, among other grounds, that several causes of action have been improperly united in one cause of action in that the plaintiff seeks in one cause of action to recover damages for personal injuries claimed to have been suffered by the plaintiff and for injuries to the automobile he was driving and moved the court to require the plaintiff to separately state said causes. There is no merit in this contention. The two injuries complained of were occasioned at the same time by the same acts and in the same way. Any proofs under the allegations of the complaint that would tend to establish one of the injuries would with equal force tend to establish the other. The injuries complained of were fully pleaded, and the defendant was given every opportunity to present his defense that he would have had had the action been split into two causes. *370 Under the Code, several causes of action may be united in the same complaint where they arise out of injuries to persons and property or either. But that provision does not make it necessary to make two causes of action out of a single wrong merely because person and property are injured. Sutherland in his work on Damages, after stating the rule relied on by defendant, points out that the state courts generally hold to the contrary. Section 118. In a note found on page 465, of 3 Ann. Cas., the following statement is made: “In the United States, however, the better rule is that the claim for both kinds of injuries constitutes but a single cause of action, and separate actions cannot be maintained therefor.” Several other questions are raised by the appellant, but, in view of the conclusions reached, it is unnecessary to discuss them. The failure of the court to instruct the jury upon the rights and duties of the parties as affected by the statute referred to was prejudicial to the rights of the defendant. The judgment is therefore reversed, and the cause remanded to the district court, with directions to grant a new trial; costs to the appellant. CHERRY, C. J., and ELIAS HANSEN, J., concur. EPHRAIM HANSON, J., being disqualified, did not participate herein.