We concur:
I concur with the result and generally with the reasoning in the prevailing opinion. I agree that under the evidence *Page 512 here, decedent was guilty of contributory negligence as a matter of law, because the evidence shows that he walked directly into the course of an approaching automobile without taking any precaution to prevent being struck thereby, since the automobile had its headlights lighted so that he could have seen it approaching and waited in a place of safety and thereby avoided the accident. Even had decedent looked to see if there was an automobile approaching, this would not have exonerated him from negligence. As long as he walked directly into the course of any approaching automobile without taking any precaution for his safety, it would make no difference whether he looked or failed to look for approaching traffic. If he looked and inattentively failed to see the approaching car or absentmindedly failed to realize his danger, or he realized his danger but still continued on into the course of the car, he would be in the same situation as to contributory negligence as though he failed to look at all. Of course, if there was a complete absence of evidence as to whether he took any precautions to avoid the accident, then the law creates a presumption that he took reasonable precautions for his own safety and that he was injured in spite of such precautions. But here there was evidence from which the jury could reasonably find that he took no precautions for his own safety and on the production of such evidence the presumption disappears from the case and the question must be determined from the evidence. Of course, the facts on which the presumption is based are still in evidence and if they have a logical tendency to prove that the decedent used reasonable care for his own safety, they may be considered in determining the question. See my concurring opinion in Pilcher v. Pilcher, 114 Utah 72,197 P.2d 143, and authorities therein cited. However, in determining this question, we must view the evidence most favorable to the plaintiffs. Since the evidence is not sufficient from which it could be reasonably found that decedent used reasonable care for his own safety he was therefore, as a matter of law, guilty of contributory negligence. *Page 513
As I view the facts, the only serious problem presented in this case is under the last clear chance doctrine, which problem is not discussed in the prevailing opinion. Since this is a directed verdict it must be reversed if the evidence will sustain a finding of facts sufficient to support a judgment in plaintiffs' favor. We must therefore analyze and view the evidence most favorable to plaintiffs and see if it will sustain a finding of facts which will support a judgment in their favor.
In my opinion the evidence would sustain a finding that decedent was as far as 19 feet east from the west curb line of 13th East Street when he was struck by defendant's car. His body came to rest 18 feet east of that curb line, from the wiping marks on the west or right-hand side of the front part of defendant's car and the fact that the right windshield glass was broken from the impact with decedent's body, it is clear that decedent was in front of the right-front fender when he was struck and that his body was carried by the force of the impact over the top of the right or west front fender and struck the windshield and then slid off the west side of the car onto the pavement. This being true, the place where the body came to rest, if the car travelled parallel with the west curb line of 13th East Street, would be several feet west of the place where decedent was struck. Twenty-three feet north of where the body came to rest and 19 feet east of the west curb line of 13th East Street, and approximately on the south side of the extended sidewalk lines of Westminster Avenue across 13th East Street, the evidence shows that there was a fresh brush or scrape mark on the pavement which appeared to have been made by scraping a shoe thereon. Even if defendant's car did as he testified — veer to the east as it struck decedent — this testimony is consistent therewith, and the jury could reasonably believe that this mark was made by the scraping of decedent's shoe on the pavement at the time he was hit.
If deceased was walking at a rate of speed slightly less than three miles per hour in going the 19 feet from the west *Page 514 curb line to the place where he was struck, and defendant's car was travelling 20 miles per hour, then the car was travelling 7 times as fast as decedent was walking and was 133 feet from the place of impact when decedent stepped from the curb into the street. Defendant's testimony was that he was travelling 20 miles per hour as he crossed the intersection but had been travelling faster prior thereto, so he would be farther away than that if that was the case. If he were travelling faster than the assumed rate, he would be farther away but would have less control over his car. I have taken 3 miles per hour to illustrate decedent's rate of speed, probably the ordinary walking rate of speed under the circumstances here described would be considerably slower than that, which would give defendant more time to avoid the accident. In any event, the rates taken would give defendant almost 5 seconds after decedent stepped from the curb to the time of impact. The evidence is clear that during all that time, had he looked, defendant could have seen the decedent, could have observed that he was not looking one way or the other, and that he did not hesitate at any time from the time he reached the edge of the curb to the time he was struck. Decedent was directly under a street light and defendant's headlights were lighted and there is no evidence that there was anything to interfere with his vision.
If defendant did see the decedent as he walked those 19 feet from the curb to the place of impact, in my opinion, it is clear such facts would sustain recovery. Sec. 480, of Restatement of the Law, Torts, which has been relied upon many times recently by this court, provides:
"Last Clear Chance; Negligently Inattentive Plaintiff.
"A plaintiff who, by the exercise of reasonable vigilance could have observed the danger created by the defendant's negligence in time to have avoided harm therefrom, may recover if, but only if, the defendant
"(a) knew of the plaintiff's situation,
"(b) and realized or had reason to realize that the plaintiffwas inattentive and therefore unlikely to discover his peril intime to avoid the harm, and *Page 515
"(c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming the plaintiff." (Italics ours.)
In my opinion assuming that the defendant saw decedent as he walked from the curb to the place of impact, under the circumstances here existing, all of the requirements of that section are fully met and thereunder it would be a jury case. If defendant saw decedent during all that time he clearly knew of his situation. Certainly if a driver of a vehicle on the street saw a man and woman walking arm in arm, and without hesitating or looking from one side to the other, they stepped from the curb into the street and continued without hesitation or without looking from one side to the other to cross the street, such a driver would have reason to realize that they were oblivious of the approaching car and were therefore in peril. It would be hard to find a situation which would more clearly indicate that the pedestrians were oblivious of their danger than this. If defendant was 133 feet away when they stepped from the curb into the street and travelling only 20 miles per hour, he would have ample time to sound his horn and stop in time to avoid the accident. Thus under these circumstances, I think it would be a jury case.
Under the above quoted section subdivision (a) the defendant must know of decedent's situation, it is not enough that he could have discovered decedent's situation, had he exercised ordinary vigilance. So unless from the evidence it could be reasonably found that defendant saw decedent during that time, then under this rule plaintiffs cannot recover. Defendant testified that he did not see the decedent until he was within 10 feet. The surrounding circumstances tend to corroborate that testimony. There was no evidence of tire marks on the pavement, nor of making a sharp curve, or that he sounded his horn, prior to the time defendant claimed that he saw the deceased. All of these circumstances tend to show that defendant just did not see decedent or his *Page 516 wife in time to do anything about it. I therefore think that it would be unreasonable to find that defendant saw decedent as he stepped from the curb into the street and until he was run down thereafter. If this is correct, then under the rule above quoted from Restatement of the Law, plaintiffs cannot recover. I therefore agree with the result reached in the prevailing opinion.
But there are cases where we have held that a defendant is liable under the last clear chance doctrine, where he negligently fails to discover the injured person's situation in time to avoid the accident. See Knudsen v. Oregon Short Line Ry. Co.,78 Utah 145, 2 P.2d 102; Palmer v. Oregon Short Line Ry. Co.,34 Utah 466, 98 P. 689, 16 Ann. Cas. 229; Teakle v. San Pedro Ry.Co., 32 Utah 279, 90 P. 402 10 L.R.A., N.S., 486. In those cases the injured person had negligently placed it beyond his power to extricate himself from his peril, in such cases we held that where the defendant negligently failed to learn of the injured person's condition in time to avoid the accident, he was liable. In two of those cases, a child had gone to sleep on the railroad track, and the other one a licensee was caught by a passing train and the employees of the company saw his condition but could not get word to the engineer who was operating the train in time to prevent injury. Those cases come under Sec. 479, Restatement of the Law of Torts, where the law is stated in that kind of a case in harmony with those decisions.
In the present case, both the defendant and the decedent were guilty of the same kind of negligence. Each negligently failed to observe the approach of the other. The negligence of each continued to the time of the accident and either of them could have avoided the accident within a very short time prior to the impact had he observed the approach of the other. There does not appear to be any good reason why the last clear chance doctrine should allow a recovery under such circumstances. Of course, the case would be entirely different had the defendant seen the situation of the decedent and then failed to do anything to avoid the accident.
McDONOUGH, J., concurs in the result. *Page 517