Devereaux v. General Electric Co.

WADE, Justice. This is an appeal from a judgment of no cause of action notwithstanding a verdict in favor of Leara Ann Devereaux, plaintiff below and appellant herein. Appellant brought this action to recover for personal injuries sustained by her in an automobile collision between her car and one driven by Harold J. McKeever, an employee of the General Electric Company, defendants and respondents herein. The uncontroverted facts are that somewhere between 75 and 400 feet from the crest of a rise on the north slope of Linden Iiill in Utah County at about 10 p. m. appellant, who was traveling north, stopped a highway patrolman and requested his assistance in a domestic matter which, if given, would require them to return south. He agreed and it became necessary to make a U-turn. To warn motorists, the officer started operating the red flasher on the top of his car. He cautioned appellant to be careful and told her to follow him. In conformance with the officer’s instructions appellant, after turning on a mechanical signaling device warning that she was turning to the left, was attempting to make a U-turn in the wake of his car at a time when he had stopped both north and southbound traffic. The officer’s car had just crossed the highway and turned south into the westernmost lane when he heard the crash out of which this case arose. Appellant’s car was struck in the rear just as it entered the east center lane by respondent, McKeever, who was coming from the south traveling between SO and 60 miles per hour, and concededly negligent so far as this appeal is concerned. He clipped the rear fender of a car which had stopped to permit the officer to pass and then hit appellant’s car, injuring her. Appellant testified that before she commenced the U-turn, she looked both to the north and south and did not recall seeing any automobiles. Appellant’s failure to see the stopped cars undoubtedly was negligence. The question to be determined, however, is whether her negligence proximately contributed to causing her injuries. Appellant testified that she looked but did not recall seeing any north or southbound cars on the highway as she entered it to make the U-turn, but the evidence is uncontroverted that at that time there were both northbound and southbound cars which had been stopped by the patrol car’s signal while he made the U-turn. So she either did not look or failed to observe what was there to be seen before she entered the highway to make the U-turn and in that respect she was negligent as a matter of law. However, this does not mean that such negligence was a contributing proximate cause of the accident. The jury could reasonably find from the evidence that the driver of a car approaching from the south would have a clear view of the place where the accident occurred [435] when he was as far as 400 feet away. Even if she had seen the north and southbound cars which were stopped to allow her to make a U-turn and she had also seen the McKeever car approaching from the south in the east center lane directly behind a northbound car which was stopped to allow her to make the turn, still the jury could reasonably find that she used due care in starting to make the turn as she did. The police car had just made a similar U-turn ahead of her after stopping traffic from both directions by signaling his intentions with the red flasher light on top of his car, and before she started she signaled a left hand turn on the mechanical signaling device on her car. Both southbound and northbound cars were stopped in the highway to allow her to make the turn, and the McKeever car was approaching from the south in the same lane and directly behind one of these stopped cars. This situation definitely suggests that the driver of the McKeever car would have ample warning that she was making the U-turn in time to stop or slow down sufficiently to allow her to make the turn in safety. Under these facts it would be reasonable to find that her negligence in failing to observe the traffic on the highway was neither a contributing nor proximate cause of the accident, for even though she had observed all of the existing conditions she was not necessarily negligent in pro--ceeding into the highway as she did. Thus it was a jury question whether her negligent failure to observe the approach of the McKeever car and the cars stopped in the highway was a contributing proximate cause of the accident, and if not, such negligence would not preclude her recovery. Coombs v. Perry, 2 Utah 2d 381, 275 P.2d 680; Lowder v. Holley, 120 Utah 231, 233 P.2d 350; Bates v. Burns, 3 Utah 2d 180, 281 P.2d 209. The cases cited in the dissenting opinion are obviously so different in the factual situation presented that they have no bearing on the problem here presented. The court therefore erred in granting a judgment of no cause for action notwithstanding the jury’s verdict. Reversed with instructions to reinstate the judgment entered on the verdict by the jury, except the portion applicable to the special damages. As to that portion of the judgment the trial court’s diminution is sustained. Costs to appellant. McDonough, c. j., and crockett, J., concur. WORTHEN, J., dissents.