Sine v. Salt Lake Transp. Co.

BAKER, District Judge. This action arose out of a collision between a taxicab of the defendant, Salt Lake Transportation Company, a corporation, and an automobile driven by one Charles W. Hall, which occurred on the 11th day of July, 1941, at the intersection of Third West Street and West 6th South Street in Salt Lake City. At the time of the collision the taxicab was being operated by the defendant Orville V. Butcher, who was an agent and servant of the defendant corporation and then and there acting within the scope and course of his employment. It is also undisputed that at the time of the accident the plaintiff was being transported by the defendants as a passenger for hire. *292 The taxicab so operated by said Butcher approached said intersection from the east; the automobile driven by said Hall was proceeding in a northerly direction along said 3rd West Street, and approached and entered said intersection from the south. The plaintiff by her amended complaint alleges that at the time of said collision she was an occupant of the rear seat of said taxicab, and that as a result of said collision she was thrown about the inside of said taxicab and thereby suffered certain injuries to her person for which she claims damages. The plaintiff further alleges that said collision and her resulting injuries were caused by the negligence of the defendant Butcher in the operation of said cab. The defendants by their answer deny all allegations of negligence, and that the plaintiff suffered any damage by reason of any want of care on their part. On the issues so formed the case came on for trial before the late Judge P. C. Evans of the Third District Court. Judge Evans heard the evidence and the matter was argued and submitted to him for decision, a jury having been waived. Shortly thereafter Judge Evans died without rendering a decision in the case. The case was then re-set and assigned to the Hon. M. J. Bronson, another judge of the same court, for trial. Thereupon the parties stipulated that the cause should be submitted to Judge Bronson upon the record made at the trial before Judge Evans, and upon arguments to be made by counsel for the parties, if Judge Bronson should so desire. The stipulation was confirmed by the court, and accordingly the court, after reading the transcript of the evidence, heard arguments by counsel for the parties. The court then took the matter under advisement, and thereafter made and filed its findings of fact and conclusions of law, upon which judgment of “no cause of action” for the defendants was duly entered on the 30th day of March, 1942. It is from that judgment that the plaintiff herein has appealed. The plaintiff assigns as error those findings of the trial court which are to the effect that defendants were guilty *293 of no negligence, and that any injuries suffered by appellant were caused solely and exclusively by the negligence of the aforementioned Charles W. Hall, driver of the other automobile involved in the collision. It is the contention of appellant that those findings of fact, together with the conclusions of law and judgment which were drawn therefrom are contrary to law, and are not sustained by, and are contrary to the weight of the evidence. It appears from the record before us that Third West Street runs north and south, and that Sixth South Street runs east and west, and that the place where they intersect in Salt Lake City was the scene of the accident of which appellant complained. The. paved portion of Third' West Street, from curb to curb, north of Sixth South Street is 93 feet, and the paved portion of Third West Street, from curb to curb, south of Sixth South Street is 61 feet. The width of Sixth South Street, from curb to curb, is 61 feet. Two sets of standard-gauge railroad tracks run along the center of Third West Street in a north and south direction and traverse said intersection. It is about 20 feet from the east curb-line of Third West Street where it intersects the south curb-line of Sixth South Street to the easternmost rail of the railroad tracks. From a point on Sixth South Street 50 feet east of the east intersection line the view south on Third West Street was unobstructed for a distance of 200 feet. On the day of the accident the taxicab operated by the defendant Butcher as agent and servant of the defendant Salt Lake Transportation Company was carrying the plaintiff as a passenger for hire in the rear seat of said cab and proceeding westerly on said Sixth South Street as it approaches the intersection of that street with said Third West Street. At the same time the automobile operated by said Charles W. Hall was proceeding northerly on said Third West Street and approaching said intersection from the south. At a point within the intersection the automobile driven by Hall ran into the taxicab, striking the taxicab at a point in the region of the left rear door and the front *294 part of the left rear fender. The impact caused the injuries of which the plaintiff complains. The specific acts of negligence on the part of the defendants alleged by the plaintiff in her amended complaint are that the defendant Butcher: (a) Operated said cab along and upon Sixth South Street in a westerly direction and south of the center of said street; (b) Operated said cab at an excessive rate of speed, to wit, in excess of 35 miles per hour; (c) Failed to keep a careful or any lookout for persons and vehicles along and upon said highway; and (d) Failed to keep said cab under control. Respondent asserts that an examination of the record before us discloses either that there is no proof of the charges of negligence made by the plaintiff in her complaint, or that the proof with respect to such charges is in substantial conflict, which conflict was resolved by the trial court in favor of the defendants. Appellant contends, on the other hand, that it appears from the record that the defendants' were negligent as a matter of law, and that such negligence proximately contributed to the injuries sustained by appellant. This is a case at law. It therefore follows that this appeal is upon questions of law alone. That being true the function of this court is not to pass upon the weight of the evidence, nor to determine conflicts therein, but to examine it solely for the purposes of determining whether or not the judgment finds substantial support in the evidence. In so examining the evidence all reasonable presumptions are in favor of the trial court’s findings and judgment, and the evidence must be considered in the light most favorable to them. If the findings and judgment are substantially supported by the evidence, then the court may not disturb them. When, however, the evidence is viewed in the light most favorable to the judgment of the trial court, the conclusion to be drawn therefrom is a matter of law, and the question which confronts this court is whether or not the *295 court on the basis of such facts was correct in its conclusions of law. Accordingly the fundamental issue presented by this appeal is this: Was the defendant Orville W. Butcher guilty, as a matter of law, of negligence which proximately contributed to the injuries of which appellant complains? To answer the foregoing question we have examined the evidence with respect to each of the specific allegations of negligence as set out above. With regard to allegations (a), (b) and (d), that defendant Butcher operated the taxicab on the wrong side of Sixth South Street, that he operated it at an excessive rate of speed, and without having it under control, we find the evidence in substantial conflict. Those conflicts were resolved by the trial court in favor of respondents, and we may not disturb its findings. The evidence with regard to plaintiff’s allegation (c)— failure by defendant Butcher to keep a proper lookout— presents a situation wherein the conflict is not so clear. True, the evidence is in conflict as to who entered the intersection first, and we must assume, since the trial court so found, that Butcher was the first to enter. In that connection it will be noted there was in effect at the time of the accident, Section 57-7-136, Utah Code Annotated 1943, which is in part as follows: “(a) The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway. “(b) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.” It follows that if within the purview of the foregoing statute, the fact that Butcher entered the intersection first is determinative of the issues here involved, the judgment of the lower court should be affirmed. We have formerly held, however, notably in Bullock v. Luke, 98 Utah 501, 98 P. 2d 350, that the rights of the possessor of the right of way under such a statute are only relative, and that one is not relieved of the duty of using due care *296 simply because he is the apparent possessor of the right-of-way. See also Berry on Automobiles, 6th Ed., Sec. 1045. The problem before us, therefore, is not simply one of determining who entered the intersection first, but of determining under all of the circumstances whether as a matter of law negligence on the part of the driver of the cab proximately contributed to the injuries of which the plaintiff complains. If it did, then the defendants would be liable, even though such driver was the apparent possessor of the right of way, and even though Hall, the driver of the other car, was likewise guilty of concurrent negligence, which contributed as a proximate cause of the injury. Ramsdell v. Frederick, 132 Or. 161, 285 P. 219; Hughes v. Pittsburg Transp. Co., 306 Pa. 55, 56, 150 A. 153. As was stated in Yellow Cab Co. v. Eden, 178 Va. 325, 16 S. E. 2d 625, 628: “The test of the plaintiff’s right to recover was whether the defendant was guilty of such primary or concurring negligence as brought about the accident. It was not whether Perkins was also guilty of negligence. Conceding that Perkins was guilty of gross negligence, that did not relieve the defendant of its own negligence, if such negligence was a proximate cause of the accident.” 'Can it be said that on the state of facts presented in this case respondents may be absolved from all negligence? In determining that question the fact is to be noted in this case that the relationship of carrier and passen-ger existed between plaintiff and defendants, at the time of the accident. This court has recognized the high degree of care which a carrier owes to its passengers to protect the latter against accidents in Christensen v. Oregon S. L. R. Co., 35 Utah 137, 99 P. 676, 678, 20 L. R. A., N. S., 255. In the course of its opinion in that case this court remarked : “The law imposes the duty upon the carrier of exercising the utmost care to protect his passengers against accidents; and, in case an accident occurs, the inference arises that the carrier has not exercised that high degree of care which the law imposes.” *297 The rule enunciated in the foregoing quotation, with some variation of expression, has been widely accepted by the courts of this country. 10 Am. Jur., Carriers, Sec. 1245, et seq.; Henson v. Fidelity & Columbia Trust Co., 6 Cir., 68 F. 2d 144; S. S. Kresge Co. v. McCallion, 8 Cir., 58 F. 2d 931; Continental Life Ins. Co. v. Newman, 23 Ala. App. 203, 123 So. 92; Arkansas Power & Light Co. v. Mart, 188 Ark. 202, 65 S. W. 2d 39; McGraw v. Ayers, 248 Ky. 166, 58 S. W. 2d 378. That rule of care applies not only to railroads, buses, etc., but to the operation of taxicabs as well. Bezera v. Associated Oil Co., 117 Cal. App. 139, 3 P. 2d 622; Friede v. Toye Bros. Yellow Cab Co., La. App., 156 So. 48; Shelton Taxi Co. v. Bowling, 244 Ky. 817, 51 S. W. 2d 468, 470. In the last case above cited the Kentucky court remarked: “In view of this rule (that carriers must exercise the highest degree of care) appellee had the right to assume that appellant’s driver, whatever may have been the situation, would exercise the care necessary to transport him safely.” Counsel for defendants substantially admit that the operator of a taxicab service is a public carrier and as such is required to exercise a high degree of care, but they call attention to the cognate principle that, even so, the carrier is not an insurer of its passengers’ safety, and that to become liable for injury to a passenger it must be established that it was guilty of some negligence which was a proximate cause of the injury. We agree with that, and accordingly will proceed to an examination of appellant’s assertion that, even viewing the evidence most favorably to respondent, the evidence discloses negligence as a matter of law on the part of the driver, Butcher. Viewing the facts connected with the collision as favorably to respondents as we may, what are they? Butcher was proceeding westerly on the north half of Sixth South Street at a speed as he approached and entered the intersection with Third West Street of 20 miles per hour. The traffic at that intersection was not controlled by any stop sign, *298 semaphore, or other traffic director. It was late afternoon on a clear summer day, and Butcher’s vision from a point 50 feet east of the east intersection line was clear and unobstructed for a distance of 200 feet south of Sixth South Street. He had already entered the intersection when he first observed the Hall car coming from the south. The Hall car was then about 50 feet from him, and Hall was then travelling, as Butcher himself then observed and concluded, at a speed of about 40 miles per hour. Butcher himself testified that it would then have done him no good to put on his brakes. He didn’t apply them. He just assumed that Hall would reduce his speed as he entered the intersection, and he then, on that assumption, proceeded through it. He didn’t see the Hall car again until just at the moment of impact. According to Butcher’s testimony his cab at the moment of impact was at a point with its front wheels between the rails of the easternmost set of railway tracks which traversed the intersection, and slightly north of the division line between the north and south portion of Sixth South Street. One of the fundamental duties which defendant Butcher owed to his passenger, the plaintiff, was to keep a vigilant lookout for other vehicles along the highway upon which he was travelling. As he approached the intersection where the accident occurred he was bound to anticipate the presence of other vehicles that might be crossing his line of travel, and to govern his conduct accordingly. 42 C. J. 91, Dembicer v. Pawtucket Cabinet & Builders Finish Co., R. I. 193 A. 622; Richards v. Palace Laundry Co., 55 Utah 409, 186 P. 439. Among other things it was his duty as he approached the intersection to look in both directions along the intersecting street, and not merely in the direction from which vehicles having the right of way over him might be approaching, 42 C. J. 963. The supreme rule of the road as to motorists at street intersections in cities is the rule of mutual forbearance. Ward v. Clark, 232 N. Y. 195, 133 N. E. 443. The foregoing rules were particularly applicable to Butcher because *299 he was the driver of a cab for hire. Butcher could not, moreover, insist with impunity upon his right of way in the face of an apparent danger arising from the negligence of another approaching from the unfavored direction. If in such case he saw, or in the exercise of due care should have seen, the Hall car approaching at an excessive rate of speed, or otherwise indicating that the right of way was probably not going to be yielded to him, he should have slowed down, or stopped or otherwise have taken appropriate measures to avert a collision. Blashfield’s Cyclopedia of Automobile Law and Practice, Perm. Ed. vol. I, p. 494, § 682; Hogan v. Miller, 156 Va. 166, 157 S. E. 540; Shelton Taxi Co. v. Bowling, 244 Ky. 817, 51 S. W. 2d 468; Petri v. Pittsburg Rys. Co., 328 Pa. 396, 195 A. 107. Actual possession of the right of way, as opposed to a physical position of two vehicles with reference to the intersection which might under the statute confer it, presupposes that motorists entering the intersection have exercised due care, including that of keeping á proper lookout. In the case of a taxi driver that means that he must keep such a lookout as will conduce to the safety of his passenger. The operator of a taxicab may not place his passenger in a place of imminent peril through his own failure to keep the lookout which the law requires of him, and then after a collision has occurred, absolve himself of negligence by asserting that, after all, he had the right of way. Neither may he absolve himself by asserting that the collision was due solely to the fault of the other driver, if that fault might have been discovered and its consequpence avoided by the exercise of due care on his part. Hogan v. Miller, 156 Va. 166, 157 S. E. 540. As we have already indicated, Butcher was required not only to look for cars approaching or entering the intersection, but to look effectively, and was charged with knowledge of all that a prudent and vigilant operator would have seen had he looked. 42 C. J. 911; Dembicer v . Pawtucket Cabinet & Builders Finish Co., supra; Huddy Cyc. of Automobile Law, 9th Ed., Vol. 3-4, Sec. 48. *300 Now, what do the facts in the instant case disclose as to the observance by Butcher of his duty for the protection of his passenger to keep a lookout as he approached and entered the intersection here involved? The facts as we view them have been recounted above. So far as the lookout kept by Butcher is concerned, they reveal that he did not look at all until he had entered the intersection and this despite the fact that his view south on Third West Street was clear and unobstructed for a distance of 200 feet from a point 50 feet east of the intersection of Sixth South Street, within which limits Hall was at all times visible to Butcher had he looked.' At the time that he did look the Hall car was about 50 feet away and coming north toward him at the rate of about 40 miles per hour. Butcher could then, by his own testimony, do nothing. He did nothing, and the collision resulted. Certainly, in light of the fact that Butcher’s view was unobstructed, it cannot reasonably be said that his observation of the Hall car was at the first opportunity, nor at a point which conduced to the protection of his passenger. Bullock v. Luke, supra. At the time he first saw the Hall car approaching he had by his negligence placed himself and his passenger in a position of peril from which he did not, and probably could not, extricate himself by the exercise of any degree of care. Therein Butcher was guilty of negligence. It is to be observed that we are here confronted with a situation where there was an entire failure of the operator of the cab to keep the look-out that was required of him. By his utter failure to look until a time when the accident had become unavoidable, Butcher deprived himself of the opportunity to do anything which might have avoided the collision. Had he looked sooner and in response to what such observation revealed attempted in some manner to have avoided a collision then, perhaps, a question of fact would arise as to whether not he had exercised that degree of care demanded by the circumstances and his relationship to the plaintiff. As the facts present themselves, however, viewed in a light favorable to the defendants, Butcher failed to look *301 when he should. He kept no look-out such as would! be effective for the due protection of his passenger. In so doing he failed to perform one of the essential duties he owed to his passenger, and) therein was guilty of negligence as a matter of law. Bullock v. Luke, supra; Block v. Peterson, 284 Mich. 88, 278 N. W. 774; Jacobsen v. O’Dette, 42 R. I. 447, 108 A. 653; Thibodeaux v. Star Checker Cab Co., La. App., 143 So. 101. See also cases cited above relating to duty of taxicab drivers at street intersections. In failing to keep a proper lookout respondents did not exercise that degree of care which is required of a common carrier of passengers for hire and therein were negligent. It follows that the judgment is reversed and the case remanded to the District Court for a new trial. Costs to appellant.