Jones v. Knutson

McDonough, justice. Robert Lee Jones, plaintiff, was injured in his automobile when defendant’s bus, operated by Claudius D. Knutson, collided with the rear of plaintiff’s vehicle. From an adverse jury verdict and judgment entered thereon, defendant appeals. About 4 p. m. on November 2, 1961, Mr. Jones and his passenger, following a car in the outside lane, were traveling west on 9th South between 12th and 11th East in Salt Lake City. This strip of 9th South is blacktopped, four laned (two eastbound lanes and two westbound lanes), and on a fairly steep hill. The street was dry and visibility was good. Two shoes fell from the car in front of plaintiff, and the woman driver of the car parked next to the curb and went in front of plaintiff’s car to recover the shoes. Plaintiff looked through his rearview mirror, saw no vehicles behind him, handsignaled for a stop, and stopped to pick up one of the shoes by reaching from the open car door. After picking up the shoe from his seat in the car, plaintiff handed it to his passenger, rolled the car forward about SO feet, and stopped to allow his passenger to give the shoe to the other driver. (About one and one-half minutes elapsed between the initial stop and the collision.) Immediately thereafter defendant’s bus collided with the back end of plaintiff’s vehicle. Testimony discloses that plaintiff, by failing to look in his rearview mirror, was unaware of the approaching bus; and [334] also that defendant bus driver had plaintiffs car in vision from the time he made his safety stop on 12th East, about 400 feet from the collision site. Plaintiff did not signal for his second stop; however, his brake lights were lit from time of initial stop as he kept his foot on the brake. Defendant bus driver saw the brake lights, but did not sound the horn or brake the bus for a stop until 70 feet from plaintiff’s car while going between 12 and IS miles per hour. He was prevented from turning into the inner westbound lane by the presence of an automobile beside him. Testimony discloses the brakes of the bus were not defective. Appellant charges the lower court with error in that: 1) it failed to instruct jury that plaintiff was negligent as a matter of law, and 2) it instructed on the doctrine of last clear chance. Appellant’s second contention will be considered first. It claims that its bus driver did not have a last, fair or clear chance to avoid the collision. We agree if we view only the sequence of events from the time the bus was 70 feet from plaintiff’s vehicle. But this court prefers to consider the facts from the time defendant entered the event, i. e., from the safety stop at 12th East. Defendant’s driver observed plaintiff’s peril when he stopped about 400 feet from plaintiff’s car. The bus driver saw plaintiff’s brake lights, the slow movement of plaintiff’s car, and he must have noticed the driver of the parked car anticipating something from plaintiff. The crux is whether the bus driver actually knew that plaintiff was oblivious to his presence and was consequently in a dangerous peril unless he stopped the bus. The last clear chance doctrine is applicable to a situation where the plaintiff’s position of peril has arisen from his own negligence only if the defendant actually knew of plaintiff’s peril, because plaintiff was not in an inextricable peril, Fox v. Taylor, 10 Utah 2d 174, 350 P.2d 154, and cases cited therein. The bus driver’s actual knowledge is a fact question for the jury. Appellant argues that the brakes of the bus would not hold enough to stop it in time, and it cites the precedent negligence cases to exempt it from operation cf the doctrine, Anderson v. Bingham & Garfield Ry. Co., 117 Utah 197, 214 P.2d 607. The record contains testimony that the brakes were not defective. Their condition was also a factual question for the jury. If the brakes were not defective and the collision resulted because the bus driver negligently failed to apply them in time,, the last clear chance doctrine applies. As seen from above, the applicability of the doctrine in this case depends on: two factual determinations. If there is. record evidence which would reasonably support a finding that the bus driver actual [335] ly knew of plaintiff’s inattention, and that the brakes were not defective, the case must be given by the trial judge to the jury under the doctrine of last clear chance for these factual determinations, Morby v. Rogers, 122 Utah 540, 252 P.2d 231. We believe and hold that there is sufficient evidence in the record for such a determination. Appellant’s first contention becomes moot in light of our holding on his second contention and will not be considered. If the jury found the necessary facts for the last clear chance doctrine present, it matters not whether plaintiff was contributorily negligent. The proceedings in the lower court are affirmed, with costs to respondent-plaintiff. CROCKETT, WADE, and CALLIS-TER, JJ., concur.