Fairbourn v. Lloyd

HENRIOD, Justice: Appeal from a judgment on a jury verdict of no cause of action in a car collision case. Affirmed, with no costs awarded. On January 21, 1965, plaintiff went south on an arterial highway to an intersection, semaphore controlled. He stopped, and turned right. Defendant was going north on the same highway, and turned left, following plaintiff westward. The highway was covered with packed snow and was very slick. It was dark. Defendant, whose windshield was splashed with water and mud from the arterial highway, made the turn, pumped a mechanical windshield facility to apply water in order to. clear vision obstruction. The windshield wiper took 3 or 4 swipes to improve visibility. In the process, the visibility was improved, but too late to avoid a collision with plaintiff’s car. The plaintiff had slowed down, contemplating a left crossroad entrance to his in-laws’ driveway; — halfway between two traffic regulated intersections. Defendant took what appears to have been an evasive action, but slid into the right rear end of plaintiff’s car, causing damage, and allegedly injured plaintiff’s neck area. Both litigants exhibited remarkable candor in their testimonies and did not hesitate to relate the facts as they saw them, albeit some of such testimony actually was harmful to each’s cause. Appellant urges 1) that as a matter of law, the court should have directed a verdict in his favor because defendant violated a statute1 and 2) that no reasonable person could conclude other than that defendant, under the facts, could be free from negligence. As to 2): A unanimous vote of the veniremen did not agree with this contention, nor did the trial court in denying the motion for a directed verdict. The weather was inclement, water and mud had splashed on defendant’s windshield, which of necessity required immediate attention. The defendant within seconds, remedied the situation, applied his brakes, but was too late to prevent sliding into the rear end of plaintiff’s car. There is at least some significance to the fact that had plaintiff continued on down the highway, without stopping to make a lefthand turn in the middle of the block, this accident no doubt never would have occurred,- — -all of which is little consolation for the plaintiff. But it seems to us that there were sufficient unusual facts here, including unexpected icy condition, that a fact question was provoked, — to such an extent that the trial court would have [64] invited error had he taken the case from the jury. As to 1) : The statute simply says that one must not follow too closely, “having due regard for the speed * * * and the traffic upon and the condition of the highway.” It is noted that both parties turned from an arterial highway that had been processed to eliminate slippage, so that it was not slippery, but slushy, onto a road that was icy and somewhat unpredictable as to ability and time factors relating to braking. Appellant urges that this is the very reason that defendant should have exercised greater caution, and we agree with such principle — but it is for the jury to determine the magnitude thereof. The statute’s language itself espouses the reasonable, prudent man doctrine, and in truth invites and demands that some arbiter of the facts determine whether speed, traffic and road conditions were such as to adjudge one as being reasonable or unreasonable, — or, in other words, negligent or non-negligent in a compensable sense. The statute gives no ■controlling, mathematical formula to test the outcome, but leaves it to the judiciary and/or the venire under its terms to establish the fault of the person involved, or the lack of it.2 CROCKETT, C. J., and CALLISTER, J., concur. Footnotes [1] Title 41-6-62(a), Utah Code Annotated 1953, to the effect that a driver shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic and condition of the highway. [2] Without committing his concurrents, the author of this opinion suggests that the cases cited by his learned colleague, Mr. Justice Ellett, in his dissent, are inapro-pos here, — particularly Dailey v. Mid-Western Dairy, which embarrassingly has been watered down by this court so much that it would take a very wee sponge to de-aquatate it completely. See Hirschback v. Dubuque Packing Co., 7 Utah. 2d 7, 316 P.2d 319 (1957) and Fed. Milk Prod. Ass’n, Inc. v. Statewide Plumbing & Heating Co., 11 Utah 2d 295, 358 P.2d 348 (1961) and cases therein cited.