Boeddcher v. Frank

159 P. 634, 48 Utah 363, 1916 Utah LEXIS 34

• Court: Utah Supreme Court
• Decided: August 25, 1916
• Docket: No. 2851
• Status: Published

Opinion

McCARTY, J.

(after stating the facts as above).

1, 2 Eight errors are assigned, but only two contain sufficient merit to warrant consideration. The error we shall first consider is directed to the refusal of the court to direct a verdict for defendant. The evidence, without conflict, shows that at the time defendant passed the street car just prior to the alleged accident plaintiff was from 100 to 125 feet in advance of the automobile and street car; that after passing the ear defendant turned the automobile to the left and crossed the west rail of the street car track, and proceeded south along the track; that the motorman sounded the gong, signaled, several times for defendant to get off the car track; that at the time the first signal was given defendant was from twenty to thirty feet in advance of the street ear, and from seventy to one hundred feet to the rear of plaintiff’s wagon. The evidence also shows that at the time the gong was sounded there were no cars or vehicles on the east side of the street in the immediate vicinity of the street car, the automobile, or express wagon; nothing to prevent defendant from turning to the left and passing plaintiff’s wagon and at the same time avoiding every possibility of a collision with the street ear. The evidence further shows that before the automobile came in contact with the wagon the street car had overtaken the automobile, and at the time of the accident was alongside of the wagon. There is evidence tending to show that at the time the automobile came in contact with the wagon the right wheels of the wagon were in the gutter and close to the curb, and that there was ample space between the wagon and the street ear track for the automobile to pass without coming in contact with either the street car or the wagon. This evidence, however, is disputed by defendant, who testified that the wagon was several feet east of the gutter and curb; that it was ‘ ‘ about halfway between the curb and track, ’ ’ and that there was not sufficient room for him to pass between the street ear and wagon. Defendant testified in part as follows: and went off the track and started to put on the brake. I thought I could stop before reaching the wagon, but my car touched the wagon.”

“It is 161r feet from the car track to the curb. That would be 15^ feet between the car and curb. 'My auto is between five and six feet wide and the wagon five feet wide. * * *! I saw Mrs. Boeddeher’s wagon first when I went off the track; that is, when I heard the whistle. * * * I turned to the left on the car track, and then as I heard the whistle I turned to the right. * * * I thought the car was close to me,

■ The jury, however, might well have found from the evidence that defendant saw, or by the exercise of ordinary care could and would have seen, plaintiff’s wagon at the time he was alongside of and in the act of passing the street ear, in ample time to have reduced the speed of his automobile, and thus could have avoided coming in contact with the wagon.

There is some discrepancy in the evidence respecting the degree of force with which the automobile came in contact with the wagon. Defendant’s evidence was to the effect that thé impact was so slight that neither thé wagon nor the plaintiff was disturbed by it. The evidence offered by plaintiff tended to show that the automobile came against the wagon with considerable force. One witness testified that when the car struck the wagon it threw the wagon ahead, and the plaintiff having hold of the lines', was thrown back and the shafts were thrown “up and around the top of the horse’s neck,” and that plaintiff appeared to be in pain; that “she was kind of doubled forward, acting as if her back was hurt. ’ ’ Another witness testified that the impact pushed the horse and wagon ahead two or three feet, and that the little boy fell backwards and “grabbed hold of his mother’s clothes to keep from falling, ’ ’ and that plaintiff had the appearance of being in pain. Plaintiff testified that on the occasion in question she lost consciousness and—

‘ ‘ when I came to I realized that something had happened. * * * I received a pain that lasted from Saturday until “Wednesday. * * * Then I was taken to the hospital.”

Dr. Howells, who was summoned to' plaintiff’s home soon after thé accident, testified in part as follows:

‘ ‘ She was at home suffering from pain in her back and pelvis. It-seemed to be a case of miscarriage. * * * I took her to the hospital, where she was operated on by Dr. Cannon. ’!

He also testified that “a blow or shock” might have caused the miscarriage. Dr. Cannon was called as a witness. We do not deem it necessary to here review his evidence in detail. We think it sufficient to say that his evidence, when considered in connection with other facts in evidence, was ample to support a finding by the jury that the collision referred to was the proximate cause of the miscarriage. We also think that the jury were amply justified in finding from the whole evidence that the defendant was negligent; that he could, by the exercise of ordinary care in the management of his automobile, have avoided coming in contact with plaintiff’s wagon. The court, therefore, did not err in refusing to direct a verdict for defendant.

3 On cross-examination plaintiff’s husband related a part of a conversation he had with the defendant about the accident the day after it occurred. On re-direct he was asked by plaintiff’s counsel if the defendant, in that conversation, said “anything, about any insurance company.” The question was objected to on the ground that it was incompetent and immaterial. The objection was overruled, and the witness answered: “Yes; insurance company paid for it — he was insured.” The ruling of the court admitting this ■evidence is assigned as error. Assuming, but not holding or conceding, that the evidence, as an academic proposition, was inadmissible, we are Of the opinion, and so hold, that it could not have influenced the jury in arriving at their verdict. The amount of the verdict, we think, conclusively shows that the jury did not enhance the award for damages because of the fact that the insurance company might ultimately be compelled to save harmless the defendant by paying to him the amount of the judgment. It must be conceded that $1,500 is a moderate sum as compensation for the injuries which the jury were justified in finding plaintiff suffered as a result of the accident, which injuries, they might well find from the •evidence, have permanently impaired her health.

We find no reversible error in the record; hence the judgment is affirmed. Respondent to recover costs.

.STRAUP, C. J., and FRICK, J., concur.