I concur.
While there is much in the reasoning of the main opinion with which I am in accord, there are a number of statements with which I do not agree. Rather than enter into a critical analysis of those statements pointing out wherein I think they are incorrect, I believe a more constructive contribution can be made by an elucidation of some of the concepts applicable to speed cases and in pointing out the peculiar nature of the bus driver's responsibilities to his passengers in view of the situation which confronted him — that is, the sudden and unexpected sliding of the Reinhardt car athwart the right of way of the bus — as compared to the duty of the driver generally to drive at a due care speed when no emergency confronted him.
I shall preface the main part of my opinion by a brief consideration of the phrase "control of a car," or its equivalent "car under control," and its counterpart "out of control." I am convinced after some years in the practice and on the bench that these phrases are often used without sufficient thought as to their conceptional content in view of the facts of the particular situations claimed to involve negligence.
Ordinarily the word "control" applied to the operation of a moving mechanical object such as a car when used in the phrase "under control" as distinguished from "out of control," means that the operator has the power to make the car respond to his will which in the case of an automobile means that it will respond to his steering and to his action to accelerate or decelerate by manipulating the throttle or brake. "Out of control" usually means that the car can no longer be depended upon to respond to the driver's efforts *Page 246 to guide or slow it. I go to some pains to describe these terms because I think that they are often used in a different and perhaps inexact sense. "Out of control" is the opposite of "under control" but excess speed is not the counterpart of "under control." Cars going at high speed may be under control in the sense that they are not out of control. We have an excellent example of a car "out of control" in the movements of the Reinhardt car. In many cases a pleader will use the phrase "failed to have proper control of the car" as meaning that the driver was going so fast as not to be able to slow down for eventualities although there was no inability of the driver to steer the car, apply brakes or decelerate the car. The only reason he could not do so in time to avoid an accident was that he was going too fast. Such allegation is synonymous with "excess speed" which in turn may be included in the still more inclusive phrase "driving without due care under the circumstances" or equivalent phrases. The pleader tends to multiply stigmata of delict in order to make defendant's conduct seem as reprehensible as possible. For the purpose of framing issues it is well to particularize as to the nature of the failure to exercise due care. In this case also we must fasten on what we mean when we use the phrases "under control" and "out of control."
In his opinion Mr. Justice Wade states definitely that he uses the word "control to
"mean the ability of the driver to stop or reduce the speed of his vehicle within a reasonable distance and to guide the same in the desired course."
I take this to be somewhat equivalent to what I shall call "due care speed," which I define as the speed which a driver should not exceed, in view of the likelihood of eventualities — not to avoid all collisions which no driver could do — but to enhance the possibility and probability of avoiding collisions. "Due care speed" is that speed at which a prudent and careful driver should drive in view of the prevailing weather and road conditions, and in view of the *Page 247 condition and responsiveness of the braking apparatus on his machine and his duty to passengers, and to other traffic on the highway.
It should be said at the outset that I do not wish to be understood as saying that the jury must necessarily fix upon a speed that would be a maximum due care speed under a given set of circumstances. The speed at which a person was going might be considered as "too fast" — to use the popular vernacular — without the jury having to consult and agree or even have in mind a process or definite figure as being the upper limit of due care speed.
Therefore, in order not to confuse speed with "control" used in the sense of ability to manipulate the car, I shall use instead of the word "control," the phrase "due care speed" and shall use the term "excess speed," to mean speed in excess of due care speed. Speed seems, even under Mr. Justice Wade's interpretation of the word "control," to be the essence of "keeping control" or of "control" although at one place in his opinion he seems to confuse the meaning with "out of control."
In this case both sides introduced testimony as to the rate of speed at which the bus was travelling at the time the Reinhardt car went out of control and skidded into its path. Both sides also presented testimony as to the distance between the bus and the Reinhardt car at the time the Reinhardt car 5 went out of control. This distance is hereinafter referred to as the "between distance." In addition to this, there was some evidence of circumstances surrounding the collision from which inferences of speed might have been made. Neither side offered evidence of the distances which would be required to stop the bus, travelling at various speeds, under the road and weather conditions prevailing at the time of the collision. I shall hereafter refer to such distances as "stopping distances." Appellant contends that the failure of plaintiff to introduce such evidence amounts to a failure of proof. Appellant's position is that without such evidence the jury could not determine what was a reasonable speed, and therefore could not say *Page 248 whether or not the bus was travelling at an excessive speed. This question is fraught with considerable difficulty.
As background, and for better understanding of the problem involved, I believe it would be helpful first to consider the duty of the bus driver to Reinhardt. His duty in this respect would be purely one of last clear chance. Even if he were travelling too rapidly in view of the skidding hazards his speed would not have been the proximate cause of the accident. His duty would arise only when he perceived or should have perceived the Reinhardt car spinning toward his path and then it would have been his duty to avoid the collision if, and only if, under all the circumstances, taking into account the speed at which he was going, he had had ample opportunity to stop or slow up sufficiently to go around the Reinhardt car if there was room for doing that without endangering his passengers. A driver is not ordinarily required to anticipate that another will have gotten out of his proper path of travel and that he, the driver, must drive so as to create for some other a last clear chance opportunity. A driver of a car does not carry with him an anticipatory last clear chance obligation. Such obligation arises only after the operator of the vehicle is or should be aware of the position of the other, who, being in a position of danger, is unaware of his peril, or, if aware, unable timely to extricate himself from it. Graham v. Johnson, 109 Utah 346,166 P.2d 230; on rehearing, 109 Utah 365, 172 P.2d 665. Nor would he be compelled to apply his brakes suddenly on an icy pavement if there were danger of his skidding off the road by so doing. The high care with which he was charged as operator of a public transport vehicle at the moment of discovery might require that he release the throttle and let the momentum of the car in part deplete itself before he applied the brakes. That might also have been the best thing to have done for the safety of his passengers even in this case. Or conditions may have been such that a due care speed would be one in which he had not gathered momentum and therefore could apply his brakes instantaneously. Due care speed may revolve around *Page 249 the time it takes to run out momentum before brakes can be applied with safety. The difference between the case of the bus driver's duty toward Reinhardt and the passengers lies then in this: That as to Reinhardt, whose car suddenly spun in his path, the bus driver's speed cannot be the proximate cause of the accident (laying aside the case where the oncoming driver was going in excess of the legal speed, a case which I desire to reserve until it comes before us properly for consideration), but only failure to take advantage of the opportunity to avoid the collision if it reasonably presented itself, taking into account the bus driver's speed; whilst as to passengers the bus driver has the duty to drive with the care that a reasonably prudent person would have exercised under like circumstances and that means a due-care speed in view of slippery pavements and eventualities which may arise therefrom. As to passengers, if the driver exceeds a due-care speed he carries such negligence with him although it may or may not have proximately caused an accident. In many instances, negligence does not result in accidents. As to Reinhardt, the duty arose only after the bus driver did or could have seen Reinhardt's predicament. Reinhardt could not contend that had the bus driver been going slower there would have been more distance within which to stop, for by the same token, had the driver been going faster he might have passed the point where Reinhardt spun onto his pathway before the spin began. No person who gets himself into a dangerous position whether by negligence or without fault can contend that, had the on coming party been going slower, he would have had a greater last clear chance to stop. The last clear chance duty is one which arises out of the scene as the defendant finds it; it does not take into account antecedent conditions. If it did the plaintiff might argue that had the defendant been proceeding at a due-care speed, he would even have arrived at the scene of danger before he, the plaintiff, extricated himself from such danger and thus argue that in such wise the excessive speed was the proximate cause. *Page 250
But as to a passenger in the bus the last clear chance doctrine is not applicable as a last clear chance concept. There would be the same obligation as in the last clear chance doctrine to do everything to avoid the accident consistent with safety toward his passengers but that would be in 2, 3 addition to the continuing duty to drive at a due care speed in view of possible eventualities and before they arose, and would therefore be a part of the bus driver's duty toward his passengers. The duty toward such passengers is to exercise continuous high care that they be not injured by the driving. And that means that the driver must drive as a prudent person would drive in view of his duty toward passengers, which I have designated for shortness "due care driving," or "due care speed." This means that the speed must be adapted to the hazards such as ice, snow, traffic and the like and, to an extent, to the likelihood of eventualities. Of course, no one can drive on an icy day so as to avoid all possible collisions. The Reinhardt car might have skidded directly in front of or over into the side of the bus no matter how slowly it was going, or even if it were stopped. Consequently, the collision itself does not prove excess speed. Such conclusion must come from the evidence or from inferences from other facts, although by taking into consideration such other facts the fact of the collision, or the force of it, may themselves be facts from which, in view of the total picture, inferences could be made.
When a car, through loss of control or other reason, suddenly and unexpectedly spins away from its side of the highway into the pathway of another vehicle coming from the opposite direction, we must be careful not to load onto the driver of the other vehicle, even as to a passenger, the duty to avoid the danger of the spinning car unless there is some negligence on the part of the driver of the vehicle remaining on its own right of way, which negligence proximately caused the injury to the passenger.
It is conceded that it is the duty of the appellate court to sustain a verdict where there is substantial evidence to *Page 251 support it. I shall not enter into the matter of the appellate court's duty when the evidence is claimed to preponderate so plainly against the verdict as to show 1 an abuse of discretion in the trial court in refusing to set the verdict aside as arrived at arbitrarily or through bias or prejudice or palpable failure to follow the court's instructions. I think it unnecessary to bring those matters into this case.
Returning now to the real problem of the case, I think it may be analyzed by breaking it into two parts. I shall first consider the sufficiency of the evidence of between distances to prove excess of due care speed. I shall then consider the direct testimony of speed, and whether or not it is sufficient to justify an inference of excess speed.
There must be some minimum between distance, which is so great that all reasonable minds would conclude that if a vehicle were proceeding along the highway at so great a speed that it could not be stopped within such distance, then such vehicle was travelling at an excess of due care speed. I shall call this distance x. Let us assume that the between distance is one mile. All reasonable minds would conclude that a bus that could not be stopped within one mile was being driven at an excess of due care speed. One mile is either x distance or x plus.
There must also be some maximum between distance so short that all reasonable minds must conclude that a vehicle travelling at a due care speed would not be able to stop within such distance. I shall call this distance y. Let us assume that the between distance is 10 feet. All reasonable minds would say that a bus travelling at maximum due care speed could not stop within such distance. Ten feet is either y distance or y minus.
Perhaps these concepts can be better explained by a simple illustration.
A Y P X ------------------------------------------------------ | | | | M | | | | N | | | | ------------------------------------------------------*Page 252
Let the line M N represent the highway. The bus is travelling from M toward N. From point A to point Y is y distance. From point A to point X is x distance. P represents any point between Y and X and p is the distance from A to P. Thus P represents every point between Y and X, and p represents every distance greater than y and less than x. When the bus arrives at point A, the Reinhardt car skids onto the west side of the highway into the path of the bus. If when the bus is at point A, the Reinhardt car is at point X or at any point beyond X, the bus, if travelling at a due care speed, can be stopped in time to avoid the collision. If the bus cannot be stopped in time to avoid the collision, all reasonable minds will agree that it is travelling at excess of due care speed.
If when the bus is at point A, the Reinhardt car is at point P, reasonable minds may differ as to whether or not a bus travelling at due care speed would be able to stop in time to avoid the collision. In other words, reasonable minds may differ as to whether or not a bus travelling at a due care speed would be able to stop within distance p, or stated conversely, whether or not a bus unable to stop within the distance p was travelling at a due care speed. The closer P is to X, or the more closely p approximates x, the greater the number of reasonable minds which would conclude that a bus not able to stop within p was travelling at an excess speed; and conversely the nearer P is to Y, or the more closely that p approximates y, the fewer the reasonable minds that would conclude that because a bus was not able to stop within p it was travelling at an excess of due care speed.
If when the bus is at point A, the Reinhardt car is at point Y or any point between A and Y, if the bus is travelling at the maximum due care speed, all reasonable minds will agree that the bus could not stop in time to avoid the collision. A bus travelling at less than the maximum due care speed might be able to stop within y distance, and of course, it would be the duty of the driver to stop if possible. A failure to stop under such circumstances would make the *Page 253 operator of the bus liable — not because he was negligent in travelling in excess of due care speed — but because he failed to utilize the last clear chance to avoid the collision.
With these concepts in mind, I think certain general rules can be laid down as regards the necessity of introducing evidence of the various distances required to stop a vehicle travelling at different rates of speed under the conditions prevailing at the time of the collision. These rules are intended to apply only where the plaintiff introduces no direct evidence of speed, but leaves speed to be inferred by the jury from the evidence of between distance alone.
(a) Where the evidence is conclusive that the between distance was x or greater than x, evidence of stopping distances would be immaterial. The defendant was travelling at an excess speed as a matter of law.
(b) Where the evidence is conclusive that the between distance was y or less than y, defendant is entitled to a directed verdict, since he would not be able to avert the accident even though travelling at a due care speed. From the between distance alone, no reasonable mind could infer excess of due care speed, and therefore there would be no evidence of excess speed to go to the jury.
(c) Where the evidence adduced by plaintiff tends to show that the between distance was x or greater, and the evidence adduced by defendant tends to show that the between distance was p, the burden is on defendant to show the stopping distances. The reason for this rule is: Plaintiff, having produced evidence that the between distance was x or greater has put in proof, which if uncontradicted, entitles him to a directed verdict (absent contributory negligence). Defendant, by adducing evidence that the between distance was p has not completely rebutted plaintiff's proof, since reasonable minds might conclude that even within distance p a bus travelling at due care speed could be stopped. In other words, in order to completely rebut plaintiff's evidence, defendant must not only show that the between distance was less than x (i.e., p), but also that a bus travelling at a due care speed could not be stopped within distance *Page 254 p. This does not mean that if defendant fails to offer evidence of stopping distances that plaintiff is entitled to a directed verdict. What I do mean is that defendant assumes the risk of failure to produce such evidence, and if the jury finds for plaintiff, defendant cannot complain that the proof is insufficient. And, of course, where defendant offers proof that the between distance was p, but fails to offer proof of the stopping distances, plaintiff may on rebuttal show the stopping distances to prove that a bus driven at a due care speed would be able to stop within distance p. In short, either party may offer evidence of the stopping distances, but neither may complain that the other failed to produce such proof.
(d) Where the evidence adduced by both parties is that the between distance was p, either party may introduce evidence of the stopping distances, but neither is bound to do so. Plaintiff may offer such evidence to show that a bus driven at a due care speed could be stopped within p, or defendant may offer such evidence to show that a bus driven at due care speed could not be stopped within distance p. However, in the event of an adverse verdict neither can complain that the other failed to offer the requisite proof.
(e) Where plaintiff's evidence shows that the between distance was p, and defendant's evidence shows that the between distance was y, the risk of failure to provide evidence of stopping distances is on plaintiff, but failure to furnish this evidence is not failure of proof, and plaintiff is entitled to go to the jury. And, of course, defendant may offer evidence of stopping distances as rebuttal to plaintiff's evidence. This is the converse of rule (c).
(f) Where plaintiff's evidence is that the between distance was x, or greater, and defendant's evidence is that the between distance was y, or less, either party may, but neither party must, produce evidence of the stopping distances.
Other situations may be conceived where some of plaintiff's witnesses put the between distance at x or greater, while others put it at p, and where some of defendants' *Page 255 witnesses put the between distance at y or less, and others put it at p. Without segregating all of the possible combinations of evidence, I think it may be said that in these cases either party may offer evidence of the stopping distances, but neither is bound to do so.
Summarizing briefly, there is no situation in which the failure of either party to prove stopping distances will be so fatal to his case as to take it from the jury. Only where the evidence conclusively establishes the between distance as x or greater, or at y or less, will the case be taken from the jury. In all other situations there is sufficient evidence to go to the jury. Either party may offer evidence of stopping distances, either in support of his case in chief, or in rebuttal to the evidence of the adverse party. In most cases it will be advantageous for one side or the other to offer such evidence. But if both sides neglect to offer such evidence, neither can complain that the other failed to do so.
I think we may analyze speed in the same manner as we have analyzed between distance. Let r represent the minimum rate of speed which all reasonable minds will agree is in excess of due care speed under prevailing conditions. Let s represent the maximum rate of speed which all reasonable minds will agree is a due care speed under prevailing conditions. And let k represent all speeds between s and r. Reasonable minds would differ as to whether a bus travelling at k speed was at due care or excess speed. We may now parallel rules (a) to (f) announced above. Where the evidence is undisputed that the bus was travelling at r speed or greater, or at s speed or less, evidence of stopping distances would be of no value since excess of due care speed, or due care speed would be proved as a matter of law by direct evidence of speed. But where the evidence shows that the bus was travelling at k speed, or where there is a conflict in evidence as to whether the bus was travelling at r speed, k speed, or s speed, evidence of stopping distances may be introduced by either party, either in support of his case in chief or in rebuttal of the evidence produced by the other side. But neither party has the duty to offer such *Page 256 evidence, and neither can complain, in the event of an adverse verdict, that the other party failed to prove his case.
As heretofore noted, in this case, as in most cases, there was evidence both of between distances and speed. The evidence of speed varied from 25 to 50 miles per hour. The evidence of between distance varied from 30 to 330 feet.
Most, if not all, of the between distances testified to would fall within the p distance range. Whether the extreme estimates would fall within the x or y distances is a question which I think we need not now determine. There was substantial evidence that the between distance was p, and from this the jury could infer that the bus was travelling at an excess speed. If a bus travelling at an extremely or moderately slow rate of speed could not be stopped within the between distances testified to, then defendants ought to have come forward with proof to that effect. Not having done so, they cannot now complain that there was not sufficient evidence of excess of due care speed.
As to the evidence of speed, I think that the jury might have concluded that even the minimum speed testified to — 25 miles per hour — was an excess of due care speed, considering the weight of the bus and the stored energy such a heavy vehicle would have going at a speed of 25 miles an hour and the adverse road and weather conditions prevailing at the time of the collision. Here again, defendant cannot complain that plaintiff did not produce evidence of stopping distances. Defendant could have come forward with evidence that a bus travelling at 25 miles per hour could be stopped in a relatively short distance under the conditions then prevailing, if such were the fact. Having failed to do so, he cannot now complain that plaintiff has failed to prove his case.
I conclude that there was both direct evidence of speed and evidence of between distance from which a jury could infer that the bus was travelling at excess speed. In addition to this, there was the further evidence that after the bus struck the Reinhardt car it struck a parked automobile 4 and then careened across the road, *Page 257 and finally came to rest at a point about 75 feet from the parked automobile. This was an additional circumstance from which a jury might infer that the bus was travelling at an excessive speed.
For the foregoing reasons, I concur.