Badger v. Clayson

422 P.2d 665, 18 Utah 2d 329, 1967 Utah LEXIS 663

• Court: Utah Supreme Court
• Decided: January 23, 1967
• Docket: 10517
• Status: Published

Opinions

^CROCKETT, Chief Justice:

Plaintiff sued to recover damages resulting from a collision between his car and one' driven by the defendant. Upon trial to a jury, they answered interrogatories indicating that both parties were negligent. From a judgment of no cause of action entered by the court thereon, plaintiff appeals.

At about 8 o’clock on the morning of December 30, 1963, the plaintiff was traveling east on 45th South, the defendant driving south on 1300 East, in Salt Lake City, approaching the intersection of those two streets, at which there is a traffic light. The yellow caution light facing defendant had come on as he entered the intersection from the north and the light was green for the plaintiff as he entered it from the west. A fact of considerable importance liere isj that from the direction these parties ap- ! i proached the intersection, because of a' slope downward to the north, and the presence of some trees and shrubbery on the northwest corner, the visibility of these parties for each other as they approached the intersection was impaired so that it was for them a “blind” intersection.

The problem of consequence here is plaintiff’s contention that inasmuch as this is a “blind” intersection, the trial court in its Instruction No. 17, particularly the emphasized portions marked [C] and [E], imposed an unrealistic and impractical duty upon him. That instruction states:

You are instructed that even though the operator of an automobile has the right-of-way, he still has the duty to keep and to maintain a reasonable, proper, and adequate lookout and [A] to use reasonable and ordinary care to avoid a collision. One who has the right-of-way must use due care while crossing and must continue to keep a [B] reasonable lookout and [C] reappraise the situation as he approaches an intersection and [D] use reasonable and ordinary care under the circumstances to avoid a collision as he proceeds.

There is imposed upon a driver the duty to be aware of the relative positions and speeds of vehicles approaching and he must [E] recurrently reobserve and reappraise in the light of the consistent changing conditions of a fluid traffic situation. Therefore, even if you should find from the evidence in this case that either driver had the technical right-of-way, you should also consider that such right-of-way is a relative right only, and if he was careless in [F] failing to keep and continue to keep a reasonable and adequate lookoiit or failed to exercise reasonable and ordinary care tmder the circumstances to avoid a collision and that such negligence, if any proximately contributed in any substantial degree to cause the collision, he would be negligent. (Emphasis and letters ours.)

For the purpose of considering the effect of the foregoing instruction we accept the plaintiff’s averment that it would have been impractical for him to “ * * * recurrently reobserve and reappraise conditions as he approached the intersection” and that the portions of the instruction marked [C] and [E] are subject to criticism as not being adapted to the particular facts of this case. But the question whether reversible error was committed is not dependent on whether some mistake or impropriety is demonstrable by looking at a separate part of one of the instructions as if the whole case depended upon it.¹ The instruction should be considered in its entirety, and along with all of the other instructions given, to determine whether they accomplished what is essential: explaining to the jury in a manner understandable to them the issues of fact and the law applicable thereto with reasonable accuracy, and with fairness to both sides.²

Refocusing attention on Instruction No. 17, in the light of the principle just stated, it will be noted that the other emphasized portions designated [A], [B], [D] and [F], which include both the beginning and the conclusion of the instruction, state the correct standard: of reasonable care under the circumstances. Furthermore, there is actually nothing in the instruction inconsistent with that standard. Again assuming that the criticized portion of the instruction is not specially adapted to the particular facts, there is plausibility to the idea that due to the special hazard in approaching a blind intersection, the standard of reasonable care might well demand special caution to be alert for oncoming traffic; and that the jurors, who are presumed to be people of ordinary intelligence who would apply the instructions to the evidence,³ would know to what extent the parties could or could not “reobserve and reappraise”; so that if in the exercise of reasonable care they could not see the other party, no such duty would be demanded.

In addition to the fact that Instruction No. 17 itself seems grounded firmly enough upon the standard of reasonable care, that standard of conduct was also clearly set forth in several other instructions: in Instruction No. 11 which defines negligence; in Instruction No. 12 which further explains reasonable care;_ and Instruction No. 16 which points out that the duty is not to guard against extraordinary or unexpected, dangers, but only against those which could reasonably be anticipated.

There are other aspects of the instructions which have a bearing upon the problem here under consideration. Although Instruction No. 17 was given at the defendant’s request, the trial judge in a plainly apparent effort to be fair to both sides, so modified it as to make it apply as stating the general duty of both drivers in approaching the intersection, so there was no greater duty imposed upon the plaintiff than upon the defendant. In addition to the numerous statements to the jury above referred to, that the standard to be applied ■was that of reasonable care, they were similarly so instructed concerning the plaintiff’s right of way under his theory of the evidence. In Instruction' No. IS the court told the jury that “one -who enters the intersection on a green signal [plaintiff] has the right of way over traffic approaching on the cross street [defendant] and has the right to assume that such traffic will not enter the intersection against the red signal, and he may continue to rely upon such assumption until he sees, or in the exercise of reasonable care should have seen, that the other vehicle is going- to proceed against the signal.” 4

We are not persuaded that the trial court was in error in submitting to the jury the issues of negligence of the defendant, contributory negligence of the plaintiff, and proximate cause as to each because, depending upon whose evidence they believed, they could reasonably find either way on those issues.⁵ From what wc have said above, it should be apparent that we believe that the instructions which were given fulfill the purpose we have stated elsewhere in this opinion; and that even if there may have been some defect in a part of one of them, when they are all considered together, there was no error of sufficient consequence that there is "any reasonable likelihood that the [plaintiff] did not have a fair trial and that the result would have been different in the absence of such error.” ⁶

Judgment affirmed. Costs to defendant (respondent).

TUCKETT, J., and JOHN F. WAHL-QUIST, District Judge, concur.

1 . Hillyard v. Utah By-Products Co., 1 Utah 2d 143, 263 P.2d 287 (1953).

2 . See Wilson v. Gardner, 10 Utah 2d 89, 348 P.2d 931, 934 (1960).

3 . Universal Investment Co. v. Carpets, Inc., 16 Utah 2d 336, 340, 400 P.2d 564.

4 . See Howe v. Jackson, 18 Utah 2d 269, 421 P.2d 159.

5 . Therefore, differing from the casé of Larson v. Evans, 12 Utah 2d 245, 864 P. 2d 1088, as a reading of that decision will demonstrate.

6 . See statement in Hales v. Peterson, 11 Utah 2d 411, 360 P.2d 822, that after the parties have had a fair trial all presumptions favor the judgment.