I dissent. Being unable to concur in the result reached in the prevailing opinion, I feel under the necessity of stating my reasons.
The accident occurred at about 2 o'clock in the afternoon. At that time it was snowing. There were icy ruts 6 to 8 inches in depth in the street and which had been in the street for several days prior to the accident. Plaintiff was traveling north on the east side of Seventh East street driving a Chevrolet coupe in good condition, with chains on the wheels, efficient brakes, and automatic windshield wiper. The window on the driving or left side of the car was open. The glass on the opposite side was clear and free from snow. A lady was in the seat with plaintiff. Plaintiff testified: He was familiar with the street and knew of the existence of the double line of tracks on First South street at Seventh East street. That, as he reached the intersection, he noticed an east-bound street car traveling slowly eastward then about 125 to 150 feet away. He supposed it was slowing down to discharge passengers. He shifted into intermediate gear and started across the south-bound track traveling at a speed of 7 or 8 miles per hour. The east-bound car came to a full stop in order to give plaintiff the right of way. No passengers were discharged. Plaintiff stated that when he started to cross the south track he looked to the east and then proceeded straight across the tracks. He looked to the east through the clear glass on the east side of his car. He said his range of vision would be limited on account of the snowstorm to a distance of from 130 to 150 feet, but he saw no west-bound street car within the range of his vision. On cross-examination he said: "I looked at the east just as I was crossing the *Page 578 first set of tracks I came to, as I was crossing the south tracks I looked to the east." This is the only time he claims to have looked in that direction. At the rate of speed he was traveling across the tracks he could have stopped his automobile within 2 or 3 feet. As the front of his automobile reached the north track he was struck by the west-bound street car. Plaintiff also testified on cross-examination:
"A. If the street car from the east had been 125 feet away from me I could have seen it.
"Q. You could? A. Yes, sir.
"Q. And by the time you traveled seven feet, the space between those tracks, and got up on that track, the north track, the street car was there, was it? A. Yes, sir.
"Q. And you didn't see it? A. I didn't see it.
"Q. Never seen it until the collision? A. Never knew what hit me at all."
When asked if he was not concerned with the east-bound car which was attracting his attention, he answered he "was not concerned with the east-bound car at all because it had stopped before I had started across the track."
The evidence was ample to support a finding of negligence on the part of defendant which would entitle plaintiff to recover if he were not himself guilty of contributory negligence proximately causing or contributing to the accident. The only question here is whether notwithstanding its negligence, the defendant is entitled to prevail because of plaintiff's negligence. It is contended that plaintiff was negligent in driving his automobile in front of an on-coming car without exercising ordinary care in the use of his faculties to apprise himself of his dangerous situation, and, even though he says he looked to the east, that he looked so carelessly or heedlessly that he did not see the car that could and should have been seen by him, the car actually having been seen by plaintiff's witnesses. As I view the evidence, there is sufficient to justify the court in saying, as a matter of law, that plaintiff was guilty of contributory negligence and that his negligence proximately caused or contributed to the accident. *Page 579
The rule with respect to when negligence as the proximate cause of an accident should be determined by the court rather than the jury is stated in 22 R.C.L. p. 148, as follows:
"Thus where the facts of the particular case are disputable, and are of such character that different minds might reasonably draw different conclusions therefrom, a question of fact is presented properly determinable by the jury. But when the facts are undisputed and are susceptible of but one inference, the question is one of law for the court. While ordinarily the answers to those questions would naturally fall within the province of the jury, and, when made in their verdict, would be regarded as binding, yet where the facts are fairly incontrovertible the question of proximate or intervening cause is for the court. In this regard the question of proximate cause is not different from the question of negligence, or contributory negligence, in all of which, when the facts are conceded or found, the question is one of law. The province of the jury is to find the facts, but the facts being found or conceded, it is the duty of the court to declare the law applicable to such facts."
The evidence in this record is not disputed. It is in substantial harmony. There are no serious conflicts. The only variations are with respect to speed and distances and other similar details. This is to be expected where witnesses form judgments on such mattters from events which happen quickly.
The rule of law with respect to the duty of an automobilist approaching street car tracks in a city is fairly stated in the prevailing opinion.
This court has also, in other cases, clearly stated the rule of due care applicable to street car collisions. In Gibson v.Utah Light Traction Co., 46 Utah 562, 151 P. 76, 79, a case where a street car struck and injured a pedestrian it was said:
"We have also often defined the reciprocal duties imposed upon both the street car company and the ordinary traveler so far as those duties can in terms be defined. In that regard we have held that, while the street car company possesses a preferential right of passage along and over its street car tracks to which right all others must yield, yet that the duty of exercising ordinary care by both the company and the traveler who may be using the street is reciprocal; *Page 580 that is, both the traveler and the street car operatives must exercise ordinary care as more particularly defined and stated in Spiking v. Railway P. Co., 33 Utah 313, 93 P. 838, and in other cases decided since then."
In Spiking v. Consolidated Ry. Power Co., 33 Utah 313,93 P. 838, 840, it was said:
"The deceased was required to exercise ordinary care for his own safety, and to that end make use of all of his faculties for seeing and hearing, no one questions."
In Burgess v. Salt Lake City Railroad Co., 17 Utah 406,53 P. 1013, 1014, involving a collision between a street car and a pedestrian, it was said:
"On the other hand, the evidence shows that the plaintiff incautiously and heedlessly stepped upon the track, where he received the injury. In the hurry of the moment, he attempted to cross the street and track without exercising that care which a man of ordinary prudence ought to exercise under like circumstances. Had he but used his senses, it is clear that he could have avoided the accident. This it was his duty to do, and, having failed so to do, he cannot be heard to complain of any injury that resulted from the failure which was the proximate cause thereof."
By the undisputed evidence, it seems to me plaintiff failed to exercise such care as a reasonably prudent person would exercise under similar circumstances, that his conduct amounted to negligence, and that his negligence was contemporaneous and concurrent, and therefore proximate. The physical facts show that he moved his automobile, traveling at a low rate of speed, in front of a fast moving street car, which, at the time he placed himself in a position of peril, was only a few feet away. The front wheels of the automobile had no sooner reached the south rail of the north track than it was struck by the left front of the street car. It is difficult for me to perceive how a driver of an automobile could get his automobile run into by a street car under the circumstances and conditions shown by this evidence without himself being guilty of contributory negligence. Had he used any of his faculties or senses of seeing or hearing, or paid any attention to traffic approaching *Page 581 from his right he would have known of the presence of the street car. He could at any time prior to reaching a point 2 or 3 feet south of the north track have stopped his car and been outside of the zone of danger. He had shifted into intermediate gear and could have stopped his car within 2 or 3 feet. The front of plaintiff's automobile reached the zone of danger but a fraction of a second before the street car was at the same point. The negligence of both defendant and plaintiff was concurrent and proximate. Both were active and operative at the same time and place. It is claimed by plaintiff that he looked toward the east and saw no car. He admitted that even in the snowstorm he could see a distance of between 130 and 150 feet. He looked at the time he was about to cross the south rail of the south track but made no other effort to look or otherwise apprise himself of vehicular raffic approaching from his right, notwithstanding he knew, as he testified, that it was his duty to surrender the right of way to vehicles approaching on his right. It would seem, therefore, that he heedlessly and without exercising ordinary care drove his automobile directly into the path of the on-coming car. It is claimed for him, however, that he looked and thereby discharged whatever duty he had to make himself aware of traffic approaching from the right. But can it be said that he is free from negligence when he looked and did not see a car that was within the range of vision? Two of the witnesses saw the car one-half block away, or a distance of approximately 300 feet. Plaintiff testified he looked toward the east when he started across the south tracks. A witness, sitting in the east-bound car, looked and saw plaintiff as he drove onto the south track in front of the east-bound street car, and, at the very moment he saw the plaintiff drive on to the south track, he also plainly saw the west-bound car about 50 feet east of the automobile or from 10 to 25 feet east of the east line of the intersection. This was almost exactly the same time that plaintiff said he looked and saw nothing. Plaintiff crossed the tracks at a *Page 582 speed of 7 or 8 miles an hour. The highest speed estimated for the west-bound street car was 35 to 40 miles an hour, which was approximately five times as fast as the automobile was traveling. The south rail of the south track is exactly 11 feet 8 inches distant from the south rail of the north track. Therefore, while the automobile traveled 12 feet, the street car, traveling five times as fast, would have been about 60 feet away when Barlow crossed the south rail of the south track. This computation, although only approximate, verifies the accuracy of the estimate of distance made by this witness. The evidence seems to me conclusive that the street car was well within plaintiff's range of vision and actually no more than approximately 50 or 60 feet east of his path when he says he looked and saw nothing. What others saw, he must be deemed to have been able to see. Kent v.Ogden, L. I. Ry. Co., 50 Utah 329, 167 P. 666.
"If the plaintiff looked, he must have seen it, or he must have looked very negligently and carelessly — in either case, he was necessarily, in the eyes of the law, guilty of contributory negligence, precluding his right to recover." Artz v. Chicago, R.I. P.R.R. Co., 34 Iowa 153.
The language of Mr. Justice Straup speaking for the court inOswald v. Utah Light Railway Co., supra, is particularly applicable here. It is as follows:
"The plaintiff, however, testified that she looked, but looked so inattentively or purposely that she knew not whether the object seen by her was a street car or something else. The question, therefore, is not whether a prudent person before attempting to cross a street car track ordinarily was or was not required to look for approaching cars, or whether he ordinarily would or would not have done so, but whether a prudent person, in looking, under the circumstances testified to by plaintiff, and exercising the care in that particular that a prudent person ordinarily would exercise, would so have conducted or behaved himself that he, under the circumstances ordinarily would have seen no more than did plaintiff. * * *.
"May reasonable minds differ that such conduct was the ordinary conduct of a prudent person under the circumstances? We think not. * * * *Page 583
"We think the nonsuit was properly granted on the ground of contributory negligence."
In the present case not only do the physical facts and conditions indisputably and definitely indicate that defendant's street car was within the range of vision of plaintiff at the time he claims to have looked, but this fact is proved by the testimony of the witness who actually saw the on-coming car and was able to estimate its speed. The witness was in no better position to see than was Barlow. He was farther away. He was within a closed vehicle and had to see the on-coming car through the car window. It must be apparent that the plaintiff looked, if he looked at all, in such an objectless and aimless manner that he did not see what was plainly visible.
While the testimony varied as to the character of the snowstorm, the weather condition is not of controlling importance when it is shown that others saw the car 300 feet or more away, and that the witness sitting in the east-bound car saw it approximately the very moment that Barlow says he looked and did not see it, and plaintiff said he could have seen it, notwithstanding the storm, if it had been within 125 feet at the time he looked. Plaintiff does not claim his attention was attracted by some other moving object which he must guard against. His testimony makes it clear that the east-bound car had come to a stop before he started to cross in front of it, and that he was no longer paying any attention to the east-bound car at the time he started to cross the tracks and looked toward the east. He knew at that time that he could safely take what time he needed to cross in front of the east-bound car which had stopped near the center of the intersection to yield him the right of way. Nor is there any serious question of plaintiff's vision having been obscured by reason of snow upon the windows of his car. He definitely stated that the window on the right-hand side through which he would look toward his right was clear, and that his automatic windshield wiper *Page 584 was operating on the windshield in front of him. His only excuse for not seeing the car when he looked is that it was not there — apparently that it was coming at such a rate of speed that it was beyond his range of vision — but this is answered conclusively by the testimony of his witnesses and and by the physical facts.
It is suggested in the prevailing opinion that the snow on the windshield, and to some extent the upright at the corner of the body of the automobile at his right, obstructed plaintiff's view when looking in a northeasterly direction, and at the time he looked through the east window the street car might have been outside his range of vision, not because he could not see 50 feet (but because it was so close that a view of it was obscured by the snow on the windshield. This line of reasoning was not offered by plaintiff, nor is it even suggested by counsel in their briefs. Plaintiff's theory, if I can understand his language, is that, at the time he looked, the street car by reason of its speed had not yet reached a point within the field of vision which he estimated to be 130 to 150 feet. If, however, there is anything in this line of argument, it seems to me it but emphasizes the carelessness of plaintiff in going upon the track without knowing and apparently without caring what vehicles might have been approaching from his right. The testimony tends to indicate that, at the time plaintiff said he looked, the street car was approximately 50 or 60 feet away from him. It seems to me impossible under such a state of facts that the body post and portion of windshield covered with snow would have obstructed a view of the street car which is 44 feet in length when looked at from the position which plaintiff occupied in the seat of his car, and, if the front of the street car had been at that time much closer than 50 or 60 feet from the intersection of their paths and in such location that a view of it was obscured, if that were possible, by the corner post and windshield, it is obvious that plaintiff would have struck the car somewhere along the side. The mere fact that there *Page 585 were icy ruts in the street and that he had reduced his speed to 7 or 8 miles an hour after having shifted into intermediate gear required that he pay some attention to possible on-coming vehicles approaching from his right, and if there was sufficient snow on his windshield to obscure a part of his ordinary field of vision, there was then a higher duty upon him than ordinary to inform himself, by the use of his senses, of traffic conditions at his right. The state law, Comp. Laws Utah 1917, § 3978, as amended by Laws Utah 1921, c. 83, provides that the operator of a vehicle shall give the right of way to an operator of a vehicle approaching him from his right at an intersecting or connecting highway. While before the passage of this law the duty upon operators of vehicles at intersections was probably reciprocal, now there is a positive duty placed upon the operator of a vehicle approaching or in an intersection to not only inform himself but to actually concede the right of way to other vehicles approaching from his right, and this rule has application where travelers approach the crossing so nearly at the same time and at such rates of speed that, if both proceeded, each without regard to the other, a collision or interference between them is reasonably to be apprehended, in which case it is the duty of the one approaching such point from the left to yield the right of way to the one approaching from the right. Bryant v. Bingham Stage Line, 60 Utah 299, 208 P. 541.
I agree with the statement in the prevailing opinion that, because of the storm and the adverse road conditions, both plaintiff and the company, to avoid accident and collision, were required to use care and vigilance in view of and commensurate with such conditions, and that both were required to use a greater degree of care than ordinarily would have been required in the absence of such conditions, but I cannot see how the application of this rule helps or tends to excuse the plaintiff, as it seems to me he failed to exercise such a degree of care as an ordinarily prudent person would have exercised even under ordinary conditions, *Page 586 and that he utterly failed to exercise such care as was required under the conditions then prevailing.
The following cases support the view that the plaintiff was guilty of contributory negligence as a matter of law, and that it was the duty of the trial court to direct a verdict for defendant on that ground: Dempsey v. City Light Traction Co. (Mo.App.) 256 S.W. 155, wherein it was held the driver of an automobile while crossing the street and street car tracks reached a perilous situation when he first saw the car that struck him, though he could have seen it sooner, is guilty of contributory negligence unexcused by the negligence of the motorman running at high speed without warning signals. Harris v. City of Seattle, 118 Wash. 327, 203 P. 943, wherein an automobile driver failed to look until he was within the zone of danger. The street car could have been seen had he looked. He drove in front of an on-coming car. This was held negligence as a matter of law. Defendant was also negligent because of high speed and no warning. Herrett v. Puget Sound Traction, Light PowerCo., 103 Wash. 103, 173 P. 1024, where the driver of the automobile could have seen the car, had he looked, in time to avoid injury. Carney v. United Electric Rys. Co. (R.I.)129 A. 593, where the driver of an automobile did not look just before going into the place of danger where her machine was struck. The court said: "If she had used ordinary prudence in that regard, she could not have failed to see her peril, and could have avoided it." Johncox v. New York State Railways,236 N.Y. 575, 142 N.E. 289, where the driver of an automobile looked as he entered the intersection, saw nothing, and drove at a speed of 7 or 8 miles per hour in front of a street car.Colborne v. Detroit United Ry., 117 Mich. 139, 143 N.W. 32,35, wherein it was held regarding plaintiff motorist that, "before passing to the strip of danger from his place of safety, where he had ample opportunity to observe without obstruction, it was his duty to assure and reassure himself `that there is not a car *Page 587 directly upon him, of which situation the fact that he is struck is conclusive proof.'"
Willis v. Boston N. St. Ry. Co., 202 Mass. 463,89 N.E. 31. The driver of a team went on to the track in front of a rapidly approaching car in full sight. He said he looked and listened. It was held he did this so carelessly that he is in no better position than if he had not looked or listened at all.