In dissenting I'm going to write the case as I view it in its details.
The pertinent facts are these: The plaintiff was a passenger for hire on a bus operated by the defendant, Utah Transportation Company. On the day of the accident plaintiff boarded the defendant's bus at Hill Field, Utah, her place of employment, for the purpose of being transported to Salt Lake City. She took a seat on the left side of the defendant's bus about three rows behind the driver. The bus left Hill Field at approximately 4:20 p.m. It was snowing and raining at the time and the highway along which the bus proceeded was covered with slush and ice. It was a four lane highway each lane being 10 feet wide, and it was paved. The road shoulders were about 13 feet wide, but cut down considerable by snow banks. The bus while proceeding south in the outside traffic lane on the west side of the highway about 1,800 feet north of the Salt Lake County line ran into the right rear of the defendant Reinhardt's automobile. Just prior to the collision defendant, Reinhardt, had been driving his automobile north about 20 or 30 miles per hour on the highway in the lane of traffic next to the center line on the east side of the highway. For some unexplained reason his car went into a spin and spun from the east side of the highway into the outside lane on the west side and directly into the path of the defendant, Utah Transportation Company's oncoming bus. Reinhardt's car was facing in a southeasterly direction and still moving at the moment of impact. It was knocked down the highway some 30 to 50 feet before it came to rest. After the first *Page 258 impact with Reinhardt's car the bus ran into another automobile which was parked on the west shoulder of the highway before being brought to a full stop at a point about 75 feet from where it hit the parked automobile. The bus weight 7,000 pounds, had a 186 inch wheel base, and was 6 feet 10 inches wide. Its capacity was 33 persons.
It was in the first impact with the defendant Reinhardt's car that the plaintiff received her injury.
There is considerable variance in the evidence presented as to how far the company's bus was from Reinhardt's car when the latter was spinning toward the west side of the road and into the path of the bus; and also as to the speed of the bus at that time. The defendant Reinhardt, who was called as a witness for the plaintiff estimated the distance to be about 300 feet. The bus driver estimated the distance to be between 75 and 100 feet. Five passengers testified that they saw the Reinhardt car prior to the impact and their estimates ranged from 150 to 90 feet. One witness fixed the distance from the curve where the accident could first be seen as 200 feet. Mrs. Horsley the plaintiff, hesitatingly testified to a much greater distance, i.e. about 660 feet, one city block, but only after her counsel suggested she estimate by comparison with a city block. Her testimony on this points stands by itself.
Mrs. Horsley estimated that the bus was going 40 to 50 miles per hour. The bus had a maximum speed governor of 38 miles per hour which was locked at that speed. Several other passengers estimated the speed to be about 25 to 26 miles per hour approximately the speed the bus driver said he was driving immediately prior to the accident. It is undisputed that the bus driver did not apply the brakes on the bus until he was within 5 to 10 feet of the Reinhardt car. The bus did not slow up any appreciable amount from the time Reinhardt's car could have been seen until the collision. The bus was proceeding down a slight incline at the time of the accident. It had taken the bus about an hour and 10 minutes to travel approximately 22 miles. *Page 259
The real controversy in this case is one of speed, and also as to whether or not the speed of the bus was the proximate cause of the injury to plaintiff. Failure to keep a proper lookout is unsupported by the evidence. The alleged failure to slacken speed and the alleged failure to apply the brakes are bound up in the question of speed and the question of proximate cause between speed and injury.
The question is: Did the evidence link speed and injury together by a chain of proximate cause? I believe not. Plaintiff has failed to establish the speed as a proximate cause of the collision. The case of O'Mally v. Eagan, 43 Wyo. 233,2 P.2d 1063, 77 A.L.R. 582, at page 588, discusses the necessity of proof of proximate cause very clearly. That court says in effect that one should be able to point out from the evidence just how the defendant could have avoided the accident by the use of proper care — proper speed in this case. If plaintiff can point that out in the evidence in the present case she has established a foundation for the jury's verdict. I cannot overemphasize the fact that the jury's verdict must have support in the evidence and such support is not found merely in the fact that the jury may have chosen to conclude that any one of the speeds testified to was unreasonable, simply because they believed it so, or by the fact that they chose to believe that such speed proximately caused the collision. There must be evidence to support their conclusions whatever those conclusions may be. We quote fromWhalen v. Dunbar, 44 R.I. 136, 115 A. 718, at page 720, a quotation quoted and approved in O'Mally v. Eagan, (cited above):
"If it should be conceded that the defendant's automobile at the time the emergency was created was proceeding at a rate of speed in excess of the statutory limit, there was no testimony of probative value showing or tending to show that the accident would not have happened if the defendant's automobile had been proceeding at the rate of 25 miles per hour, or even at a much less rate of speed, or that the speed of the defendant's automobile in any way entered into the cause of the collision." *Page 260
To arrive at the verdict it did in the present case the jury must have found that the defendant bus company's driver could have stopped this bus upon the road as it then was within the space and time available to him after Reinhardt's car first became visible in its spin, had he been going at a reasonable rate of speed. But what was that reasonable speed; how was it to be determined so that it would show how the bus could have been stopped in time? There is no testimony as to the distance required to stop that bus at any given speed. Bus driving is not so common to all of us that each of us is qualified to express an opinion as to such a required distance. Three hundred feet distance or 75 feet distance on an inclined icy road at 50 miles per hour or at 25 miles per hour with a bus weighing 7,000 pounds and an automobile spinning toward the bus are not a set of facts which on their face indicates that the bus could or could not have been stopped in any particular distance — or, for that matter, that the collision could or could not have been avoided by the bus driver. Such circumstances leave nothing but speculation as to what could have been done with the bus at such speed or at other speeds. In the absence of evidence of the average human reaction time, the approximate coefficient of friction on the road under the conditions existing on the day of the accident, and the braking distances of vehicles, or in the absence of testimony of expert drivers as to what can be done with a motor vehicle of that size and weight, the jury cannot through the application of logic and reason determine whether or not a bus proceeding at a reasonable speed could have stopped in time to avoid a collision. Unless the jury can say from the evidence (not just say) that the collision would not have occurred, but for that speed, they are not justified in returning a verdict for plaintiff. The jury concluded that the transportation company's negligence was the only negligence that was the proximate cause of the collision. Even though it be considered that Reinhardt's skidding was an unavoidable accident so far as his responsibility is concerned, it does not follow that such a skiding may not have been an independent *Page 261 intervening cause between the alleged negligence of the transportation company and the collision. To take it out of that classification there must be evidence connecting the alleged negligence of the transportation company as a proximate cause, to the collision.
To hand the jury various speeds and various distances and ask them to select which is reasonable and which is unreasonable without giving them an evidentiary standard upon which to base their selection, is to ask them to speculate. In the majority of cases, it will result in their reasoning backward from the resultant accident that the speed at which they conclude the driver was going must have been unreasonable or else the accident would not have happened. Such reasoning by its very nature assumes the proximate cause element; and the question of what was the proper method, under the circumstances, of operating the bus upon an icy road is just skipped over.
What is there in the record upon which a comparison can be made to enable the jurors to arrive at the conclusion of excess or of non-excess speed? I say again, bus driving is not a thing of common knowledge. It must be founded on expert testimony — of which there is none in the record. It can't be assumed that any speed is excessive, and the burden placed on defendant to defeat that assumption. The plaintiff's prima facie case calls for proof of negligence and proof of proximate cause, neither of which must be assumed. Proof of facts which cannot be measured, for lack of a unit to measure them, accomplish nothing.
I am of the opinion that the motion for a directed verdict in favor of the defendant Transportation Company should have been granted.
LATIMER, Justice, not participating. *Page 262