Fairbourn v. Lloyd

ELLETT, Justice

(dissenting).

I dissent.

While the trial court properly excluded the issue of contributory negligence from consideration by the jury, yet in my opinion he erred in failing to instruct the jury that the defendant was negligent as a matter of law.

The defendant saw plaintiff turn and go west on 94th South, and almost immediately thereafter he turned and went west also. His windshield was dirty, and he pumped the pedal for the windshield wiper three or four times, and the water on his windshield obscured his vision so that he could not see the road ahead of him. Despite the total loss of vision, he continued to drive without in any manner slowing his movements, knowing that the plaintiff’s car was immediately ahead of him. It had been snowing, and the highway was slick. The plaintiff slowed down so as to make a left turn into his father-in-law’s place.

The collision occurred 95 paces from the intersection. Assuming 33 inches to a pace, the defendant would have traveled 261 feet *65from the intersection to the point of impact. He claims he saw the plaintiff’s automobile when it was two car lengths ahead of him but could not avoid the collision because of the slickness of the road. It will be noted that he was stopped at the intersection before making the turn and accelerated his car until he was driving 20 miles an hour at the time of the impact.

If someone had suddenly thrown obscuring matter on the defendant’s windshield, it would have been his duty to stop or slow down. In this case he himself caused the loss of his vision in the direction he was traveling, and it is difficult to see how he could drive blind for over 200 feet and not be negligent.

O’Brien v. Alston, 61 Utah 368, 213 P. 791, was a case where plaintiff sued for damages to her car.’ The question was whether the plaintiff was herself guilty of contributory negligence. Quoting from Serfas v. Lehigh, etc., Ry. Co., 270 Pa. 306, 113 A. 370, 14 A.L.R. 791, this court said:

* * * It is the duty of a chauffeur traveling by night to have such a headlight as will enable him to see in advance the face of the highway and to discover grade crossings, or other obstacles in his path, in time for his own safety, and to keep such control of his car as will enable him to stop and avoid obstructions that fall within his vision. (Emphasis added.)

Dalley v. Mid-Western Dairy Products Co., 80 Utah 331, 15 P.2d 309, was a case where plaintiff at night ran into the defendant’s unlighted truck which had been parked upon the highway. At the conclusion of the plaintiff’s evidence the trial court sustained a motion to dismiss on the ground that the evidence showed as a matter of law that plaintiff was contributorily negligent. In affirming that ruling this court said at page 336 of the Utah Reports, 15 P.2d at page 310:

In this jurisdiction the doctrine is established “that it is negligence as a matter of law for a person to drive an automobile upon a traveled public highway, used by vehicles and pedestrains, [sic] at such a rate of speed that said automobile cannot be stopped within the distance at which the operator of said car is able to see objects upon the highway in front of him.” * * *

Hansen v. Clyde, 89 Utah 31, 56 P.2d 1366, 104 A.L.R. 943, was a case where a guest in a passenger car was injured and sued a road contractor for failing to erect barricades at the beginning of a section of highway under construction. The court said at page 37 of the Utah Reports, 56 P.2d at page 1369:

When a driver upon a public highway with his light equipment cannot see more than 50 feet ahead of him, it [sic] his duty to drive at such speed as will enable him to stop within that distance. * * *

In the instant case the defendant voluntarily impaired his vision and drove for. *66some 200 feet at a speed of 20 miles per hour before he could see the road ahead of him. When his windshield became clear and he could see again, he was too close to plaintiff’s car to avoid a collision. This is not the case of momentary blindness due to a sudden and unexpected impairment of vision, and in my opinion it amounts to negligence as a matter of law, and the trial court should have told the jury so.

I would remand the case for a new trial.

TUCKETT, J., concurs in the dissenting opinion of ELLETT, J.