Watters v. Querry

588 P.2d 702, 1978 Utah LEXIS 1487

• Court: Utah Supreme Court
• Decided: December 11, 1978
• Docket: 15454
• Status: Published

Opinions

CROCKETT, Justice:

Plaintiff Lisa Watters sued defendants Querry, whose car had rearended her car, and defendant Elizabeth Hemingway, who had abruptly stopped her car in front of plaintiff’s. Plaintiff settled with Querry. From a failure to obtain a jury verdict against Hemingway, she appeals, assigning errors in exclusion of evidence and in instructions to the jury.

At about 10:00 p. m. on February 26, 1976, defendant Elizabeth Hemingway¹ turned her car north onto 7th East Street from Elgin Avenue (about 2950 South in Salt Lake City). She accelerated to the speed of traffic flow (about 50 m. p. h.) while she was moving to her left from the extreme outside (easterly) lane to the inside (against the highway divider) lane. After thus proceeding northward about 600 feet to a break in the divider, she made a sudden stop to await an opportunity to make a left turn. Plaintiff Watters, immediately following Hemingway, managed to stop without contact. But the next following car, whose driver, defendant Clayton Querry, was admittedly inattentive, ran into the back of plaintiff Watters’ car resulting in injury to plaintiff and damage to her car.

After the Querrys settled with Watters, the matter was tried and submitted to a jury for determination of the culpability of each of the drivers under our comparative negligence statute.² In response to interrogatories, the jury found that the operative negligence was 85 percent defendant Querry’s and 15 percent plaintiff Watters’. It also answered that defendant Hemingway was negligent in making too abrupt a stop, but that her negligence was not a proximate cause of the collision nor of the injury to plaintiff Watters.

The plaintiff’s claim of error in exclusion of evidence relates to a statement made by the defendant Hemingway about an hour after the accident. In visiting with a friend and talking about the accident, she seemed somewhat upset and distressed and stated as a reason therefor that she “felt like she was the cause” of the accident. The objection to testimony about the statement was that it was too remote to be res gestae, that it was hearsay, and that it was of “the ultimate fact to be determined.” We are not aware of any rule or reason for excluding such a statement because it may relate to the ultimate fact to be determined.³ Neither would the statement be excludible on the ground that it is hearsay. Defendant Hemingway was a party who allegedly made what would be an admission against interest and thus competent evidence; ⁴ and moreover she was available both to testify and be subject to cross-examination with respect to such statement. It is our opinion that the objection was improperly sustained.

The instruction of which plaintiff complains reads, in pertinent part:

If a driver creates a dangerous condition with a motor vehicle, but this condition is such that another driver, exercising reasonable care, should have observed and avoided the dangerous condition, then the negligence of the later driver is an independent intervening cause, and, therefore the first driver cannot be a proximate cause of the collision.

The plaintiff took an explanatory exception to the instruction, asserting that it was not a proper statement about proximate cause and was in conflict with other instructions. The instruction is not necessarily incorrect as a general statement of a rule if applied in appropriate circumstances.⁵ It is usually true that a person who is exercising reasonable care may assume that others will also do so, and may rely upon that assumption until something appears to warn him to the contrary. But that is not always true.

The more fundamental test is whether under the particular circumstances he should have foreseen that his conduct would have exposed others to an unreasonable risk of harm; and this includes situations where negligent or other wrongful conduct of others should reasonably be anticipated. This is the view expressed by the eminent authority, Professor Prosser. In his discussion of intervening causes, he makes this statement:

The risk created by the defendant may include the intervention oí the foreseeable negligence of others . . . the standard of reasonable care may require the defendant to protect the plaintiff against ‘that occasioned negligence which is one of the ordinary incidents of human life and therefore to be anticipated.’⁶ [All emphasis herein added.]

The difficulty with the instruction about which plaintiff complains is that, as applied to the instant situation, it would seem to exculpate defendant Hemingway (who created a dangerous situation) if it is found that the defendant Querry (the later actor) was negligent, whether or not the latter’s conduct was foreseeable. If the principle of law just discussed is properly applied to the evidence in this case, it appears to us that there is a legitimate question as to whether a jury could reasonably find that defendant Hemingway, in making the alleged abrupt stop, should have foreseen that, in traffic such as there was on that highway, some momentarily inattentive driver following her would not be able to react and brake quick enough to avoid collision with her car or the car behind hers. The instructions should have presented that problem to the jury as contended by the plaintiff.

The fact that other instructions were given inconsistent with the one in question and consistent with the law cannot properly be regarded as curing the misconception the jury might have formed from the erroneous instruction complained of. The jurors would not know which instruction was correct and which one was in error and thus would simply be in the position of not knowing which instruction to follow; and neither the parties nor the court would know which they did follow.⁷

Because of the errors in the exclusion of evidence and instructions to the jury as discussed herein, we cannot conclude with any degree of assurance that there may not have been a result more favorable to the appellant in the absence of those errors.

Judgment vacated and the cause remanded for a new trial. Costs to plaintiff (appellant);

MAUGHAN and WILKINS, JJ., concur.

1 . David E. Hemingway is a defendant only because he is Elizabeth’s father and a signator on her driver’s license. “Hemingway” refers to Elizabeth.

2 . 78-27-37, 38, U.C.A., 1953 as amended.

3 . Rule 56(4), Utah Rules of Evidence specifically so states; Cf. In re Baxter’s Estate, 16 Utah 2d 284, 399 P.2d 442. Wigmore on Evidence . (Chadbourn Revision, 1972) Section 1053.

4 . Rule 63(7), Utah Rules of Evidence.

5 . See Hillyard v. Utah By-Products Co., 1 Utah 2d 143, 263 P.2d 287 for extended discussion.

6 . Prosser, Law of Torts, 4th Ed., p. 275.

7 .That where instructions are inconsistent or contradictory their use may be considered as prejudicial, see Ivie v. Richardson, 9 Utah 2d 5, 336 P.2d 781 (1959); Hall v. Corporation of Catholic Archbishop of Seattle, 80 Wash.2d 797, 498 P.2d 844 (1972).