Holmes Ex Rel. Holmes v. Nelson

326 P.2d 722, 7 Utah 2d 435, 1958 Utah LEXIS 170

• Court: Utah Supreme Court
• Decided: June 13, 1958
• Docket: 8726
• Status: Published

Opinions

WORTHEN, Justice.

Action was brought by Douglas Holmes, a minor, through his guardian, to recover damages for injuries sustained on the 11th day of July, 1955, when plaintiff was struck by an automobile driven by defendant. The jury returned a verdict of no cause of action.

A motion for a new trial was filed by plaintiff’s attorney, assigning all seven grounds specified in Rule 59(a).

Thereafter, and on June 7, 1957, the court entered a minute order which read:

“Motion for new trial carefully considered and hereby granted on the grounds that the verdict is against a clear preponderance of the evidence.”

On June 11, 1957, the trial court made its order as follows:

“It is hereby ordered that the verdict herein and the judgment entered thereon on the 23rd day of February, 1957, be and they are hereby set aside and vacated on the ground of insufficiency of the evidence to justify the verdict, that the verdict was against the law, and error in law.”

Defendant filed a petition for interlocutory appeal from the order granting a new trial, which petition we granted.

The question before us is whether or not the trial judge was warranted in concluding that the evidence was insufficient to justify the verdict.

Both defendant and plaintiff have considered the case as though the court based its ruling alone on the sixth subdivision of the rule, insufficiency of the evidence to sustain the verdict. We therefore shall not consider any other ground.

It is not necessary to comment on the case of King v. Union Pac. R. Co.,¹ which went further than we are required to go in this case. Here we are not confronted with evidence that is equally convincing in its weight. In this case the demand of Rule 59(a) is fully satisfied — the evidence is insufficient to sustain the verdict.

The accident occurred about 8:20 p. m. on 800 West Street in Woods Cross, which street runs north and south in front of and east of the home of plaintiff’s parents. The oiled surface of the highway is approximately 38 feet 6 inches wide. The shoulders on each side are approximately 10 to 12 feet wide. The west lane of traffic of said oiled highway is 22 feet 5 inches wide, and the east lane of traffic is 16 feet 3 inches wide. The point of impact was approximately 4 feet 6 inches into the east lane of traffic. The speed limit was 30 miles per hour. Defendant was traveling northerly with his wife at a speed of about 25 m. p. h. with his headlights on. (Defendant’s wife warned him when 300 feet from the point of impact of the presence of children.) Defendant saw the children himself when he was 200 feet south of where the child was struck. A car approached from the north and defendant observed the children move back to permit the southbound car to pass. Defendant’s car and the southbound car passed at a point about 100 to 125 feet south of the point of impact.

Defendant testified that when he observed the children about 200 feet to the north he removed his foot from the gas pedal; that he did not then apply the brakes and that the removal of his foot from the gas pedal did not appreciably slow him down because of a slight decline toward the north. Defendant testified that he did nothing except remove his foot from the accelerator to safeguard the children until he saw plaintiff dart into the street when defendant was about 75 feet from the point of impact. He did not slow down any, and did not put his foot onto the brake pedal to enable him to stop more quickly. Defendant did not remember if he sounded his horn.

When defendant was about 75 feet south of the point of impact, he saw the plaintiff, a three and one-half year old child, run into the street from the sidewalk west of the street.

Defendant testified that there was nothing wrong with his brakes.

There is conflict in the evidence as to the presence of gravel on the road and the temperature at the time, both of which have a direct bearing on the coefficient of function of the road surface. The evidence is likewise conflicting as to whether the road was dry or wet. Under defendant’s testimony he observed the children at such a distance that he was able to take reasonable precautions. This failure to take such precautions, if there was such a failure, could and probably would spell negligence.

Under examination by the court the defendant testified:

“The Court: After this car passed you going the other way you saw the child. Then where was the child when you first saw it after the car passed you?

“A. The child was coming off the sidewalk north of the Holmes’ driveway.

“The Court: He was how far off the sidewalk at that time ?

“A. Off the sidewalk, oh — directly off the road probably 10 or 12 feet.

“The Court: 10 or 12 feet off the sidewalk or off the road?

"A. Off the road. He was just leaving the sidewalk when I observed him the first time.

“The Court: How far would he have to go from there to where you hit him?

“A. Oh, about 30 feet, I should say. I never measured it.

“The Court: How far away were you when you saw this little boy?

“A. I was approximately 75 feet.

“The Court: And the little boy would be how far, 30 feet?

“A. Oh something about that distance.”

The distances testified to disclose that the child was obliged to travel 36 feet 9 inches while defendant was traveling 75 feet.

We are of the opinion that this accident never should have happened; it was preventable. A careful review of the evidence leads us to the conclusion that defendant either did not see this child when he said he did, or was not going as slowly as he claimed he was, or that he failed to do everything reasonably possible to avoid striking plaintiff by bringing his car to a stop as soon as possible or by turning to the right.

Defendant laid down 52}/á feet of skid-marks. From this must be subtracted the length of the wheelbase of the car, which figure- was not given by any witness. There is also an unexplained three-foot break in the skidmarks. To this must be added the length of the wheelbase of the car. This break in the skidmarks would indicate that defendant failed to keep his brake continuously depressed after applying the same.

Defendant’s own expert witness testified that even on a wet road with gravel on the surface, defendant should have been able to stop within a distance of 65 feet after observing the danger, or 10 feet short of the point of impact. Plaintiff’s witnesses testified that the road was dry and free from gravel, and that the road showed a coefficient of friction of 80% at a temperature of 43 degrees Fahrenheit. Defendant testified that the night was hot; however, defendant’s wife testified that she was given a sweater to throw over her shoulders after the accident. Defendant was driving a new 1955 Ford Station Wagon with four wheel brakes.

At 25 miles per hour defendant should have stopped within 33 feet of skidmarks with a coefficient of friction of 65% and all the evidence indicates a coefficient equal to or greater than 65%. The normal reaction time at 25 m. p. h. is 27 feet. The physical facts cannot be reconciled with due care or with a speed of 25 m. p. h. or less.

It appears that defendant had plenty of room to turn to the right and miss the child. Had he depressed his brakes continuously after they were applied, he would have stopped short of the plaintiff, provided his speed was not more than 25 m. p. h. If his speed were 25 m. p. h. or in excess of 25 m. p. h., he would have missed the child had he not applied his brakes.

We are of the opinion that the trial court committed no error in granting the new trial.

Affirmed. Costs to respondent.

McDONOUGH, C. J., concurs in the result.

1 . 117 Utah 40, 212 P.2d 692.