This action was brought by the personal representative of John K. Spiers, deceased, to recover damages for his death.
The case was tried to the court sitting with a jury, resulting in a verdict for plaintiff.
Defendant appeals; plaintiff cross-appeals. At the close of plaintiff's evidence, defendant interposed a motion for non-suit. This was denied. When both parties had rested, after all the evidence had been submitted, defendant moved the court for a directed verdict in favor of defendant. This motion was also denied. The matter went to the jury with the result indicated.
There is no substantial conflict in the evidence. The right of plaintiff to recover is based upon alleged negligence of the defendant. Upon that issue there is no conflict in the evidence. We are of the opinion there is no direct evidence of negligence, and no evidence from which negligence could be reasonably inferred on the part of the defendant.
In summary of the uncontradicted evidence, we find the following:
The accident occurred at the forks of the highway just southeast of the rocky point near the hot springs, not far northwest of Ogden City, Utah. The approach from the north, the right hand new or main highway, leads into Wall Avenue of Ogden City. The old road after rounding *Page 141 the curve of the rocky point is the left hand road leading easterly from the point of division.
Defendant was approaching from the north, the point where the road divides, intending to take the new or right-hand road to him. He was traveling within the speed limit. There was not much traffic upon the highway, the time being about seven o'clock in the morning. The visibility was good.
Defendant was an automobile driver of about 20 years' experience and fifty-two years of age. He was keeping a lookout. There was nothing unusual to detract his attention.
Near where the road divides the main or new, or Wall Avenue highway makes a curve to the right. When the defendant neared the point of division of the highway, he observed a truck or automobile approaching from the south on the new highway. On account of the curve, when he first observed the approaching truck, he was unable to determine on which side of the road it was. As the truck driven by Mr. Spiers, the deceased, and defendant's car approached each other defendant observed the truck was on its wrong side or west side of the road, which was defendant's right-hand side. This was the situation presented as the two vehicles approached each other when the distance was about two hundred twenty-five feet between them and approaching each other, each at a speed of from 35 to 40 miles per hour.
The defendant, his wife and daughter-in-law were the only eye witnesses at the trial. Mr. Spiers, the driver of the truck, died about nineteen days after the accident.
The circumstantial and physical evidence tends to support the uncontradicted evidence of the eye witnesses. It is evident that the automobile turned to the left about the same time that the truck turned to the right. The vehicles collided at front ends at approximately right angles on the north side of the old highway. The tire marks of the truck were traceable in a direct line from the point of collision southerly to the gravel at the V point where the hard surfaced portions of the old and new highways intersected. *Page 142 Beyond the gravel point there were no visible tire marks.
The tire marks of the automobile driven by defendant indicated that he turned to his left from the new highway to the point of collision.
The plaintiff claimed liability on four grounds: Excessive speed; inability to stop within range of vision; failure to keep a lookout; and that deceased was on the right side of the road and that without warning defendant suddenly swerved to the left directly toward decedent.
As heretofore indicated, the uncontradicted evidence is that Mr. Spiers was "cutting the curve" and was on defendant's side of the road when the vehicles were but 225 feet apart. Each party, by his pleadings, claimed the other was on the wrong side of the highway. On this issue all the evidence is against plaintiff.
Where the collision finally occurred each was on the north side of the old highway. Neither was intending to travel the old highway so something happened to divert each from an intended course. There is no presumption of negligence 1 simply because an accident happened. In this case, negligence may not be presumed from the direction and distance of the tire marks of the respective vehicles as they approached the point of contact. The oral evidence of time, place, distances and circumstances were aids in interpreting the mute marks of the tires of the respective vehicles.
The evidence forces the conclusion that the driver of the truck created a dangerous emergency. In the emergency, it cannot be said the defendant acted other than as a reasonably prudent person ordinarily would have acted in the 2 emergency. Defendant undertook to do what he could to avoid an accident.
In the case of McPhee v. Lavin, 183 Cal. 264, 191 P. 23, the following syllabus reflects the holding of the case upon facts arising out of one turning to the left to 3 avoid an accident when an approaching vehicle was on the wrong side of the road: *Page 143
"One suddenly confronted with an unexpected danger may use such means for avoiding the danger as would appeal to a person of ordinary prudence in a like situation, without being held to strict accountability as to whether the course chosen is the most judicious or not."
The case of Kennedy v. Opdenweyer, 11 La. App. 532,121 So. 636, is similar to the instant case as to facts, a curved road, the crossing to the left and the witnesses. Upon the trial a judgment was had for plaintiff. On appeal it was reversed.
Aside from the undisputed proof, as the two vehicles approached the forks of the road the southbound car had its choice as to which of the forks of the road it would take. A left turn to take the left fork would give the 4 car approaching from the right the right of way. Had the northbound car been on its proper side of the highway and the defendant had continued as he had intended to continue there would have been no collision. Even had there been a possible avenue of escape for defendant by taking to the shoulder of the road to his right still when two alternatives are presented to a traveler upon a highway as means of escape from a threatened collision with an approaching traveler, either of which might be fairly chosen by an ordinarily prudent intelligent person it is not negligence to take a choice of either. Skene v. Graham,114 Me. 229, 95 A. 950.
Statutes designed for protection of person and property have been passed. Among them is the statute relating to curves and approaching a crest in the highway. The driver of a vehicle is by law required to drive to his right side of the center line of the highway when approaching the crest of a grade or upon a curve in the highway when a driver's view along the highway is obstructed within a distance of five hundred feet. Revised Statutes of Utah, 1933, Section 57-7-26.
The trial court should have granted defendant's motion for dismissal at the close of plaintiff's testimony, failing *Page 144 in this the defendant's motion for a directed verdict should have been granted. The cause is remanded with directions to dismiss in accord with the views herein stated. It is not necessary to discuss the cross-appeal.
Judgment reversed. Costs to appellant.
LARSON, and PRATT, JJ., concur.