Miller v. Utah Light and Traction Co. , 96 Utah 369 ( 1939 )

I think the evidence in this case should have taken it to the jury. The decision appears to me to rest on two wrong propositions: First, that where the front of the bus safely passes pedestrians standing in the walkway and follows the curve of the street car tracks, the driver has as a matter of law fully performed his duty toward such pedestrians.

Second, that the evidence in this case is not susceptible of a deduction (a) that the bus swerved suddenly toward the right after it started to turn or (b) that it is not susceptible of a deduction that the bus driver did not cut in more to the right of the car tracks during the turn to the east.

The first proposition is quite important and establishes as a rule of conduct for every driver of a bus or long truck, the rule which applied to motormen of street cars. The opinion says:

"The law seems to be well settled that the operator of a street car or motor bus when rounding a curve and moving in accordance with traffic laws and regulations and in broad daylight is justified in assuming that an adult person knowing that a bus is in the street and taking a position in the street far enough away to permit the front end of the vehicle to clear and pass him, will if necessary move back far enough to avoid being hit by the inward swing of the overhang at the middle or the outward swing of the rear end."

Also:

"The turn to the right therefore was not a sudden or abrupt turn but an established arc for the buses and street cars, as sweeping, gradual, and as wide as could be made around the corner." (Italics added.)

As we shall later see perhaps the turn in this case should have not followed the arc made by the track but should have been made farther on and then of necessity more sharply in order to avoid consuming too much of the pedestrian lane and more specifically to avoid colliding with the plaintiff.

In support of these statements above quoted from the prevailing opinion, authorities dealing with street cars moving on fixed rails are cited and quoted from. Only three cases involving a motor bus are given. In none are the facts or the situation the same. Fittipaldi v. Philadelphia Rural TransitCo., 107 Pa. Super. 385, 163 A. 397, is a case where the person struck had just gotten off the bus and stepped back so as to indicate to the driver that he was aware of the bus turning and would allow for it — so it is really not in point.

The rule regarding street cars, moving on fixed rails, arose out of the necessity of the case. The street car could not depart from the rails in order to adopt itself to the circumstances surrounding it in any particular case. The rule that the motorman of a street car was under the general duty to operate his car as a prudent man would under the same circumstances was circumscribed by the physical fact that he was compelled to operate it in a fixed route. It was only over that fixed route that he had to exercise the standard of care above set out. The standard of care is the same for a bus or a truck driver, but since his vehicle is not constrained to a fixed line of travel, this same standard may require him to proceed farther along the straight line before he makes the turn if the situation is such that the jury should be permitted to say whether such procedure was necessary to fulfill the requirements of due care. And the situation may be such if there are pedestrians in the walkway in proximity to his bus as the front of his bus or truck passes the walkway. I see no reason why we should hold that where a bus or motor vehicle driver starts at the safety zone to turn his car to the right (where the car track must because of the necessity of graduity of curve start to make the turn) and then parallels or straddles the car tracks passing the front of his bus safely by people standing in the cross walk that he is in law free from negligence when by going a few feet farther along in the straight line before he makes the turn he could avoid all danger of the overhang hitting any person in the walkway. He does not have to have eyes in the back of his head or "watch out behind while going forward." All the law requires him to do is what it requires every driver of a vehicle to do; that is, exercise such care under the circumstances as the circumstances call for and if the circumstances call for going forward a few feet and then making a sharper turn, he should do it. I do not think it is wise even to lay down a rule as to how far he must turn his head. That all depends on the circumstances.

There is another clear reason why the rule which applies to vehicles bound to tracks should not apply to those not bound to tracks. In the case of the former the action of the pedestrian in relation to the vehicle can rest upon the fair assumption that the car will stay in the tracks. He can from experience, therefore, know just how much leeway he must give it to clear the overhang. But vehicles not bound to tracks are of all sizes, lengths, and varieties and they are free at any time to suddenly change their course and negative any fair calculation of a pedestrian. In a vehicle not constrained to tracks the back wheels on a turn always cut inside the arc made by the front wheels. That is so well known a fact to be observed from the tracks of any automobile turning in the snow or mud that I think judicial notice may be taken of it. Consequently, the back middle portion of the body of such turning car is swung more into the arc made by the front wheels than is the body of a street car. The tracks keep both wheels of a street car in the same arc. This means that the so-called overhang in the case of an automobile whose front wheels are equi-distantly straddling the tracks will be greater than in a car of equal length confined to the rails. This is on the supposition that there is a straddling of the rails without any swerving. If there is swerving, or if the right front wheel of the bus or truck is farther over toward the right, the body of the car may come even farther toward the right. This being the case, it may be of the very essence of due care for long busses and trucks to proceed a few feet beyond the point where the car tracks start to divert from the straight line before starting their turn, if there are persons in the crosswalk in position to, or approaching a position in which they might otherwise, be struck by the overhang. It is for the jury to say. I think this rule applied to busses will in every case depend upon niceties of measurements and refinements as to the relative position of different parts of the bus or truck to the pedestrian which will make it very difficult for juries to determine whether the driver exercised due care. How much can the driver vary from an equi-distant straddling of the tracks before the jury may determine whether he is guilty of negligence. The street car case presented a definite situation. Any small variation in the case of a motor car may have serious consequences. Furthermore in an intersection where there are no street car tracks on the turn may the driver assure himself of immunity from the jury's appraisement of his conduct by showing that he followed a course where the street car tracks would have been had any been there? If so it gives him a preferred route and opens the case to endless issues.

The following excerpts from opinions and textbooks while not all on similar facts are sufficiently relevant to point the difference between the bus and street car cases. In Plewe v.Chicago Motor Coach Co., 283 Ill. App. 57, it is stated:

"However, the motor driver did see the plaintiff pass in front of the motor coach, and it is a fact that the driver knew or should have known that if the turn made at this intersection is not wide enough the rear of the coach will come close to the curb. The motor driver cannot assume, in making the turn, that his only duty is to look ahead. At that time he had notice and knew that the plaintiff, together with other persons, was passing in front of the coach, and it was his duty to drive so that there would be proper clearance between the bus and the curb, to permit the plaintiff to reach the curb in safety. It was his duty in properly driving the bus to avoid injury to any person lawfully on the street at the time and under the circumstances. * * *

"The defendant further contends that the duty of the driver of the coach was only to keep a proper lookout ahead so as to avoid collisions with other vehicles or with pedestrians passing in front of the motor coach; that it is not the driver's duty to watch the rear of the motor coach being driven by him.

"In the instant case the driver had knowledge of persons passing in front of his bus while he was making the turn, and also that in making the turn unless a wide turn was made, by reason of the length of the motor bus, persons using the cross-walk would be caught at the curb line.

"* * * The driver in this case evidently assumed that he was clear of the curb and proceeded until he was stopped. The facts and circumstances in each case must be considered in order to determine whether there was negligence in the driving of the car."

Whereas, in the instant case the motorman states he did not see anyone near the track whilst in the Plewe Case he did, there is in this case evidence that he should have seen them because two of the witnesses said they had just skirted in front of his bus while they were going east on the pedestrian lane. And they remained standing in that lane within three feet of the bus while the front end passed them because it was not until the bus a moment later grazed their backs that they jumped out of the way. And one of them testified that the plaintiff was there also at that time. The jury could well have found that the bus driver should have seen these people and the plaintiff who was in relatively the same position as they were. If he has the same responsibility when he should have seen them as if he had seen them, the language of the Plewe Case is directly applicable.

In W. W. Pickle Canning Co. v. Baskin, Ala. Sup.,181 So. 765, plaintiff was struck by a two-wheel trailer as he walked in the same direction as the truck and two feet away from the pavement. The court in affirming judgment for the plaintiff said [page 766]:

"When the truck driver was within fifty or seventy feet of plaintiff's intestate he pulled to the right in order to pass another large truck and trailer at that point, and we conclude from the record that it is a reasonable explanation of the accident that plaintiff's intestate was struck by the trailer, which doubtless swerved to some extent, as the driver righted the truck upon the road after thus passing the other truck. * * *

"* * * The jury were authorized to find from the evidence that the driver of the truck was negligent in driving in such close proximity to plaintiff's intestate, and in not taking proper precautions to avoid striking him with any part of the truck or trailer."

In Ventimiglia v. Heiman Mfg. Co., Mo. App., 256 S.W. 139, recovery was had for the death of one standing on a curb in front of an electric light pole. The court said [page 140]:

"Though the wheels of the truck were not caused to run upon the sidewalk, the negligence of defendant's driver sufficiently appears from the fact that he drove the truck so close to the curved curb at this place as to cause a portion thereof to extend over the sidewalk and strike and injure the deceased while lawfully standing upon such sidewalk."

In King v. Wolf Grocery Co., 126 Me. 202, 137 A. 62, the court held the question of whether defendant was negligent to be for the jury, stating [page 63]:

"* * * in turning the truck sharply to the right just as he passed her to go down Cross street, which of necessity would swing the rear end of the truck body some distance toward Mrs. King, and that he should have anticipated that the rear wheels * * * would be likely to skid * * *." Texas Motor Coaches v.Palmer, Tex. Civ. App. 97 S.W.2d 253; Dumochel v. Becce,119 Conn. 175, 175 A. 569; Porter v. Green-Brier Quarry Co.,161 Md. 34, 155 A. 428; Donovan v. P. Lorillard Co., 10 Cal. App. 2d 253,51 P.2d 142.

While these cases are distinguishable from the case at bar and may present situations where the negligence of the driver was more apparent, they stand essentially for the proposition that where a pedestrian is not wrongfully at the point where he was struck it is a question for the jury whether the vehicle was handled with due care even though the front end safely passed the person injured. In the instant case plaintiff was properly in the crosswalk. She stopped to permit the traffic to proceed over the cross-walk in response to a "go" signal both from the semaphore and the traffic officer. She was not compelled to run back to the east curb and thus intricate herself with oncoming traffic going north; nor was she compelled to hop toward the south in the safety zone although it might have been more advisable. She may have been guilty of contributory negligence if she saw or should have seen that the bus was turning. But as we shall later attempt to show, that, too, was a question for the jury. Being in a spot where she had the right to be, subject to her exercising due care, it was the bus driver's duty to operate the bus in view of her position with such care as a prudent driver should exercise under the circumstances. The jury should be permitted to pass on the question of whether this operater should not have proceeded farther north before the swing began.

In the case of Barton v. Craighill, 1920, 268 Pa. 464,112 A. 96, a truck carried beams extending five feet beyond the end of the truck and as the truck passed plaintiff on its left it turned sharply to the right causing the beams to extend beyond the course of the front wheels and strike the plaintiff. In affirming judgment for defendant, notwithstanding the verdict, the court stated:

"If the chauffeur had no reason to believe that anyone was near his truck who might be struck, he of course could be guilty of no negligence in turning on the street, but as according to the evidence, he was coming straight toward her, he must have seen her and at the same time must have seen her step back toget out of the way, showing that she knew what was approaching. We are therefore clearly of opinion that it was not his business to look back after he passed the place where he saw her get outof the way." (Italics added.)

This is in harmony with the holding of the prevailing opinion and evidently in harmony with the one bus case cited in that opinion also from Pennsylvania — the Fittipaldi Case, supra. But I do not think we should follow the Pennsylvania rule. Evidently Mr. Berry does not think so either for he states in his work on Automobiles (6th Ed.) Sec. 478, in considering the Barton Case, "It is submitted that the court was in error."

I think the rule laid down by the prevailing opinion should not be the law as to vehicles not confined to tracks.

I now discuss what I conceive to be the second erroneous holding of the prevailing opinion, to-wit: That the evidence is not susceptible of the deductions (a) that although the bus did, during the beginning of its turn, straddle the tracks approximately equi-distantly with its front wheels, it swerved to the right during its turn; or (b) that instead of straddling the tracks equi-distantly with its front wheels, its front wheels were farther over toward the right in the turn which would throw the back wheels still farther over toward the right. The reader may imagine that he is a jury man for the moment. The evidence he has before him is summarized as follows: The bus is 24 1/3 feet long, 7 feet 9 inches wide. The street car tracks are 4 feet 8 1/2 inches wide. With a bus astraddle of the rails equi-distantly on a straight track the body of the bus hangs over the track 18 inches. There were double wheels on the rear and single wheels on the front. The outside face of the wheels is flush with the outside of the body of the bus. Walker, an employee of the defendant, testified that if the bus were placed on a "three center curve such as the one here" the overhang would be 25 inches. He did not state whether in such position the front or rear wheels would be equi-distantly astraddle the rail. The traffic officer testified he saw Mrs. Miller just as she was falling to the pavement. She was just a little bit off the east rail. "She was about three feet in front of the right rear wheel as I saw her falling." He blew his whistle as he saw her falling. The bus proceeded about six or seven feet after he blew his whistle before it stopped. The yellow lines marking the pedestrian lane are twenty feet apart. The front end of the bus was south of the south line of the pedestrian lane before it started. The tracks start to curve toward the east before they reach the south line of the pedestrian lane and while opposite the posts of the safety zone. The officer testified that the bus in making the turn would not be "more than 12 inches off this rail either way, this way or this way." It stopped about on the rails. Now as to the position of Mrs. Miller when she was hit. She said she was on line with the posts of the safety zone midway between the north and south line of the pedestrian lane. The posts are 7 feet 2 inches east of the east rail of the straight north and south track. Gates testified that he and Miss Everett had been coming east from the west and were in the pedestrian lane with their backs to the bus as the whistle blew for it to proceed. It brushed the backs of their coats. Miss Everett jumped. She was standing to the north of him and Mrs. Miller was standing north of her in the pedestrian lane. He states:

"The bus started up, and, as I said, we could feel the bus right against our back. I had on a rather draping coat, and the bus brushed against the coat, and the young lady I was with, who was to my left, the bus also brushed against her, and as it made the sharper turn, or as it turned the corner, the side of the bus struck the lady and it hurled her around, her back was to the bus, it hurled her around so she fell underneath the bus. It pushed her forward, and she fell underneath the bus, and it looked like the bus was not going to run over her, but it kept on turning sharper, and as it turned sharper the back wheel ran over her leg, it looked like it ran over her hips, however her coat was there. * * *

"* * * As the bus hit her, as I said, it swung her around and knocked her down so that she fell, and if the bus had been going straight it would have missed her. However, it seemed to make a very abrupt turn, right after it hit her."

He further states, "the front wheels as I remember as I looked up the side of the bus were considerably off the track * * * off to the right." The east part of the bus was "a good foot and a half to two feet as it passed us" off the east rails. (Italics added.)

Ruth Everett testified that just as she and Mr. Gates passed over the east track walking east, the light changed and they were approximately on line with the posts of the safety zone in the pedestrian lane. In her own language she states:

"The light changed, and as the light changed, this bus that was in back of me started to go forth, and it proceeded to turn a right turn, and I was watching it, and I thought it was going to hit me, so I jumped, I jumped eastward to get out of the way of the bus. * * *"

"Q. * * * Do you know whether or not the bus started to make its turn before it cleared the pedestrian walk? A. Well, it seems as though it must have, or else I wouldn't have had to jump from the position where I was standing."

The driver of the bus testified that when the light went green and the officer beckoned him to proceed he started and followed the car tracks as was his usual custom. He states that his two front wheels would be practically on the rails. Later he again testified as follows:

"A. The right front wheel is inside of the track, and the other one — of course, it is wider — it is on the west of the track.

"Q. What is wider, what do you mean by `wider'; both wheels are the same width. What I am trying to get at was this: Was your car, your bus, as you went around there, on the center of the track; or either side of the track, or straddle of the tracks, as you made the curve, or on them? A. They were on the tracks.

"Q. On the tracks? A. Yes."

His speed was three or four miles per hour as he proceeded around the curve. When he stopped the wheels of the bus were right over the rails.

"Q. Was that true of the front end and the rear of your bus? A. Yes, sir, they was all on the rails." (Obviously this could not be so.)

On cross-examination he testified:

"Q. So, if the right wheel of your bus was inside of the right rail, your left wheel would be at least three feet west of the left rail, wouldn't it? A. Well, it depends on how much you are in there, how much you are lapping over.

"Q. It couldn't be more, or it couldn't be less, could it, if your bus is about three feet wider than the rails? A. That would be only a foot and a half each side, wouldn't it?

"Q. That is right. Didn't I understand you to say that your right wheel was just inside of the right rail. Do you get my question; do you understand it? I don't want to take advantage of you? A. No; I tried to follow the rails around, which I always do, try to keep right on the rails. I might be off just a little but which wouldn't be very much."

He did not see the plaintiff or anyone in the pedestrian lane "in the radius of my bus."

Mr. Green, an employee of the Utah Power Light, standing on the front platform behind the operator of the bus, when the plaintiff was hit, got out and noted that "the bus was standing on the rails, that is, the rails were within — I noticed the front right hand wheel was within a foot of the rail."

Mr. Guiver, another employee of the defendant company, testified that after the bus stopped the wheels were "straddling as much as you can to make them center."

Miss McFarland, driving an automobile which was waiting on the west line of the north bound traffic, testified that the bus straddled the rails around the turn. She did not see the accident nor the plaintiff prior to the accident. Mrs. McFarland, mother of Miss McFarland, who was in the same automobile, testified the bus "was right on the rails" as it made the turn. She did not see the plaintiff until she saw her rolling on the ground after the accident.

It seems to me that the testimony of the police officer, the driver of the bus and Mr. Green and the McFarlands shows some discrepancy as to the path of the bus. All that can be deduced from all of it is that the bus generally traversed the path of the car tracks. But no accurate idea can be obtained as to where the front and back wheels were in relation to the street car tracks at the moment of the accident nor where it stopped after going six or seven feet after the accident. A reading of the record accentuates this confusion. And I think it will be a confusion introduced in the trial of any such case if the rule laid down in the prevailing opinion is the law. It is difficult to see how an intelligent jury could have reconciled the driver's testimony according to the simple law of physics with the distance between the wheels. The back wheels may have been well east of the curved track as it struck the plaintiff. Assuming that the police officer's testimony was correct that the wheels straddled the rails (and being out in front, it is likely that he saw the front wheels only) while on the turn rather than that the right front wheel traveled around the curve to the left of the right track as testified to by the driver, the jury may have readily concluded that the driver was negligent from the following testimony: All the testimony of the witnesses who saw plaintiff before the accident place her as from two to three feet east of the east rail. They do not specify as to whether they mean east of the straight north and south rail or east of the rail curving to the east, but the diagram where they placed their crosses, and a close reading of their testimony, bears out that they must have meant the latter. They could not have been brushed by the bus as it turned and been from two to three feet from the straight rail. They would have been run over because even on a straight course the bus overhangs the rail eighteen inches. Once concluding from the foregoing evidence that the plaintiff was from two or three feet to the east of the curved rail — and there is no testimony to the contrary — they could reasonably further conclude either that the driver did turn suddenly more abruptly toward the right or that the back wheels cut inside the arc made by the front wheels to such an extent as to bring the body of the bus far more than twenty-five inches over the curved rail and that the driver was in either case negligent. The jury could, therefore, under all these circumstances, have concluded that he was negligent in not proceeding north a sufficient distance to clear anyone in the pedestrian lane which he should have seen or allowed for before he made his turn, or that if not negligent in that respect he turned to the right suddenly and was negligent in that respect. It is indeed difficult to see how the plaintiff could have been where all the witnesses who saw her before the accident claims she was and not be hit unless by the negligence of the driver. If the overhang on the curve is twenty-five inches and Mrs. Miller was from two to three feet from the east curving rail, the driver, unless he did turn in more sharply to the right, would have avoided her. At any event he would have avoided her if he had proceeded several feet farther north so that the back end of the bus could practically clear the pedestrian lane of any overhang caused by the turning. It is not our province to argue the evidence in the case for either side, but on a directed verdict we must give every intendment to the party ruled against. It seems to me that under any interpretation of this evidence a case to justify a directed verdict has not been made out.

The only other ground on which the verdict could be directed was that in law the evidence showed contributory negligence. From the testimony as set out above, it is just as evident that the court would have to leave this question to the jury as it is that he would have to leave the question of defendant's negligence to the jury. It seems more possible to hold that in law there was not evidence from which contributory negligence could be inferred than that there was evidence from which it must be inferred. But there is conflicting evidence. The question should, therefore, have been left to the jury.

Before concluding, I desire to register an objection to the statement in the opinion that the evidence clearly shows that there was in the situation of this case no duty to sound the horn. While I consider this allegation of negligence not very strongly supported by evidence showing such a duty, even under the test laid down in the prevailing opinion regarding when warning signals are not required, I am not prepared to say, for reasons above stated, that the driver if he veered to the right in his turn should not have sounded a horn. Certainly in such case the plaintiff may not have had "actual knowledge of the * * * movement of the * * * vehicle." Where drivers of cars decide suddenly or are required to change their course, a "wake up" signal for those who may properly assume continuity of movement along the path theretofore chosen may be part of due care. We should not lay down too exact rules to govern when some act need or need not be done as a part of the content of due care. Nor am I so sure that the plaintiff had a duty to watch the astute police officer for every signal he might give regarding the bus. The officer might have been standing in a position where the bus or some vehicle made it impossible for her to see him stop the north-bound traffic and signal the bus to turn east. His signal was for the bus driver. I cannot say that the pedestrians caught half way across, rightfully stopping at a place where they are out of the line of on-coming traffic, have a duty to know what each whistle of the policeman may mean and see every signal he may give where such whistle-blowing and signal-giving are not meant to affect their movements.

The evidence was clearly for the jury. That two young people escaped by jumping out of the way when they felt the bus graze their backs is itself some evidence that the bus was taking in too much of the pedestrian lane in the turn it was making. Perhaps because the elderly lady was not able to do likewise she was knocked down. Rules must be made which will protect elderly people whose age has robbed them of some of their alertness as well as for young people. The rule that applies to cars confined to tracks is not applicable here. It places too much responsibility on the pedestrian and not enough on the automobile driver. For the reasons above set out, I dissent.