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Show Page 82 Wednesday, March 81, 1971 THE DAILY RECOID r was not a pedestrian. In The Supreme Court Of The State Of Utah Irene A. Peterson, Plaintiff and Respondent, No, The plaintiff in the instant case haul the burden of proving by a preponderance of the evidence that the deceased was a pedestrian when he lost his life. This she did not do. Therefore, I would reverse the judgment entered and remand the matter with directions to dismiss the complaint of the plaintiff. 12187 FILED v. March 29. 1971 Continental Casualty Company, a corporation, Defendant and Appellant. Third District Court Calendar L. M. Cummings, Clerk HENRIOD, Justice; Thursday, April 1, 1971 Helen Spalding 19Z77& vs Carolee Matthiew J. McIntyre & John Lowe Believable evidence elicited under the discovery process indicates that plaintiff's farmer husband was crushed by a tractor that,, driverless, had rolled down a rise, all of which occurred on his private property. vs Cooperative Apt. Inc. Lee W. Hobbs & Joseph Knowlton 189203 - Joseph Lloyd vs Wasatch Construction Co. The only question is whether the deceased was a "pedestrian" under the terms of the policy. The trial court said he was, - a conclusion with which we agree, - no one questioning the fact that the tractor was a "land conveyance, " and it appearing that the vehicle, out of gear, simply traveled downhill as mentioned, and quite obviously ran over the deceased. G. D. Hunt Ronald C. Barker as m m WE CONCUR: 19392 - Supply J. E. & Salt Lake John Black and R. Skeen " & Loan - Thomas Frank vs David E. Sorenson W. Brent Wilcox & D. E. West 19OII2 - Olympis Sales Co. DUNHAM NEIL BELL 198530 - Industrial Commission of Utah vs HAROLD BUTLER'S - 198531 AND DENNY'S INC; INC. Pltf$2,726.51 M. H. Cook Pipeline vs TERRACOR TERRA CONSTRUCTION, INC; Construction Melvin E. Leslie 17&M - Standard Supply Co. vs Bruce S. Unck,et al and Brant Wall SANDRA 198529 - Utah Cooperative Assn vs GEORGE H. SWAN AND VERA S. LEONARD; Pltf$474.87; bal due bal due & AND Pltf$1, 564.44; $393.00; $265.67; $105.22; note and mortgage BELL; RESTAURANTS, George Dansie AND Company Pltf$4,088.00; rent 198532 - Larson Ford Sales, Inc vs Aho Pltf FRED MAC MURRAY; contract vs Daily Himes, etal - Capitol Indus tries, Inc 198533 David Bown vs $2, 475. 00 HYER ASSOCIATES, INC; foreclosure of lien J. Allan Crockett;- justice - Suits District Court ELLETT, Justice: (Dissenting) I dissent. The husband of the plaintiff was found dead in his barnyard under the left rear wheel of his farm tractor. The motor was running, and the machine was in neutral gear. At the time the deceased was found, he had a pair of pliers in one hand and an iron bar in the other. He had intended to drive his tractor over to the home of a neighbor, where he was to pick up a left-han- d grain drill. There were someof his tracks on the ground on the side of the tractor. The gear mechanism could not be manipulated by one side of the machine. The ground sloped standing on the ground on the left-hand downward ahead of the tractor. Judgments District Court - Joseph Paul White, Victor White and White Properties, Inc. vs JAMES R. 198511 Howard AND STEVE If the deceased was killed by being run over by a land conveyance while a pedestrian, then the plaintiff would be entitled to an additional sum of $10, 000 under a policy of insurance written by the defendant. I cannot believe that the deceased was a pedestrian within the meaning of the terms of the policy. If he were a pedestrian, then so would every mechanic working in a private garage be one. A motorist who is killed while changing a flat tire beside the highway would likewise be a pedestrian. I just cannot believe that the policy was intended to cover such situations. 198512 3), The following cases seem to me to throw some light on the meaning of tbe word "pedestrian": In Stout v. Skinner, 283 HI. App. 330, the deceased was pushing his mobile because it would not Btart. The court held that he was not a pedestrian. auto- -, In Carlsen v. Hardware Mut. Casualty Co., 39 N. W. 2d 442 (Wis. 1949), the plaintiff was struck by a car when he left his automobile to thank another motorist for pulling him out of a ditch. The Supreme Court of Wisconsin held that the plaintiff was not a pedestrian. In Gooschin v. Ladd, 33 P. 2d 653 (Wash, 1934), the plaintiff's car was stuck in the mud to one side of the paved portion of the highway. Another motor- ist attempted to pull plaintiff's car onto the highway but the towrope broke. While plaintiff was at the left front of his car and removing the broken towrope, the defendant drove his automobile into the olainiff. It was held that the plaintiff MERW- N E- - Rachel Juarez vs NEFF & SON CONSTRUCTION Pltf$2, 445.50; 198514 bal due,' - American National vs JEFFREY L. MARGUILES; $1,779.25; note Bank Pltf - Ross Clay dba Ross Clay Advertising vs THE GILSABIND 198515 CORPORATION; ERIK HUPP 326 Pltf$1, 578.20; servl 198516 - Karl Woodard and Olive Woodard vs A. REX NIELSEN; Pltf $3,000.00; damages - Pltf$7,165.83; 325 against Siegel, Exec of Est. of Siegel and Eva Siegel Eva 194090 Jensen Contractors vs PRODUCER'S LIVESTOCK MARKETING ASSN AND SALINA MARKETING SERVICE, bal INC; due Pltf$606.80 198519 - Mary S. Fletcher dba Certified Collection Service vs ROBERT A. BURCH AND JEANNINE Pltf$1,781.44; $695.38 security agreement 198520 - Harry A. Miller and Alan BURCH; C. Crosby vs GROCERY UTAH WHOLESALE COMPANY; Pltf$75,000 $1,082.46; $25,000; $566.84; (2 cause of action) death claim & y Max Company Pltf JERRY V. STRAND; $4,972.38; $42,647.14; $23.20; 325 - City Finance Corpn 189334 vs ARLIN J. BATES AND BATES, JOYCE K. BATES; Pltf JESSIE $1,508.07; $37.00; $375.00 against Arlin J. Bates and Joyce 197425 A. D. Prince-Cove- Inc. vs $1,194.26; $8500; pers injury - E. Employees EVA SIEGEL EXEC. FOR ESTATE OF MAX SIEGEL AND EVA SIEGEL DBA STOUT TRAILER SALES, JAMES BRUSH AND ZELDA BRUSH K. Pltf I. P. Federal Credit Union vs Ema Lee May vs JANET 198517 PULLEN AND ROGER PULLEN; 198518 - 196448 - Salt Lake Bartlle Corpn vs B. B. CO; EDWARD support D. JUAREZ; ces In the Motor Vehicle Code, which has to do with traffic, a pedestrian is U. C. A. 1953. The idea of defined as any person afoot. Section New Twentieth The travel is inherent in the definition. Century Dictionary defines the word as "one who walks or journeys on foot." Black's Law Dictionary says it is "a person traveling on foot. " VANDE - Aristea Hupp vs LEONARD vs Estate of Tekla R. J. Mulliner, Exec, Hupp, $4,538.04; gam judg garnishee; 135579 SLAY-DO- court to determine 198513 41-6-6(- Utah vs ENTERPRISES vs & - First Security Bank of 198528 vs Insurance co. of No. An. Grant Mac far lane. Sr. & Jay Jensen Mark Miner bal due Pltf$ 1,411. 67; E. J. Skeen & L. S. Axland 191615 - Nolan A. Hollingshead R. L. Tuckett, Justice dba DON CORPORATION PATRICIA STEVENS CAREER COLLEGE vs Stephen T. Gillmor - Elaine Pltf DYKE WALTON; - Dictaphone Corporation vs 198527 MAR Bert E. Tidwell, et al Homer Wilkinson & Lewis Livingston 192557 - Edward L. Gillmor A. M. Swan H. $2,115.92; bal due vs 178192 - Davidson Lumber Sales, Inc. vs Child Friday. April 5. 1971 17961- - Federal Building Pltf$897.54 BAKER; bal due City Lines M. CONS TRUCTION AND CLAUDE C. 198526 Snma F. Ward serv. and - Buehner Block Co. vs 198525 HARMONY vs 194195 Chief Justice Pltf$473.16; materials United Homes, Inc. vs (continued) Rodney Bluemel,etal David E. West Block Company vs RICHARD SCHWAB DBA MOUNTAIN VIEW LUMBER COMPANY; Than as Burton & - Buehner 198524 REA Express 185712- - Pltf JOHNSON; 198523 - Buehner Block Company vs JOE FIELDS; Pltf$2, 501.36; unpaid bal K. Wimmer vs Appellant urges that the trial court lent credence to the definition of "pedestrian" found in the Motor Vehicle Code: "Any person afoot, " and hence erred since sudh definition does not square with the Black Law Dictionary version of "pedestrian" as being "A person traveling on foot, " - reasoning that a pedestrian must be one. in motion and.that consequently the policy was inapplicable to a "man working on and about an idling farm tractor located on his private property." It seems to us that the distinction is more forensic than substantive, and it appears to be unrealistic to conclude that the policy would not cover a case where a man, for example, having walked home from work, having walked through his gate and having stopped to take the mail from the mailbox, was injured by a "land conveyance" but would cover a case where, if while still walking he had retrieved the mail before opening his gate. We believe and hold that under a reasonable interpretation of what we think is a fairly certain word of rather common connotation, applied to the circumstances of this particular case, the deceased was a "pedestrian" and his death was covered by the terms of the policy. Jr,, L. JOYCE A. $1,165.34; $333.23; contract - Skyline Builders 188525 Appellant indulges a non sequitur by assuming that coverage under the policy is conditioned on a pedestrian's traveling some place on a public way. The insurance policy could have spelled out auch a condition precedent, but it didn't. To say that a pedestrian is not a pedestrian if he stops walking is disconsonant with realism and the common connotation of the term. A lot of pedestrians, as we think of them, many times are injured after they have stopped walking - but they are nonetheless on foot. The word "pedestrian" itself etymologically refers to the foot, or pedal extremity. E. R. Callister, & Ann Charbonneau SETERS; Pltf VAN $25,000; pers Injury AND George Got sis -- - Deborah 198521 vs JOSEPH H. 198522 - Continental Thrift and Loan Company vs MARION D. JOHNSON Appeal from what was labeled a summary judgment for plaintiff which actually was a judgment on all available facts, under an insurance policy covering injury "sustained in consequence of being struck by any land con11 Affirmed, with costs to plaintiff. veyance while a pedestrian. 192873 Suits District Court CO; Bates; 325 - Crane Co. vs - vs G. FMA FURNACE $24.00; 326 Pltf$1, 668.75; 197754 AAA Financial Corpn DBA GARTH CAMPBELL TRUCK SHOP GARTH CAMPBELL Pltf$343.05; $131.01; $23.60; 326 197797 - FMA Financial Corpn vs ALBERT SHORT; Pltf$693.37 $231.67; $25.40; 326 197819 vs - J. WAYNE Plcf$1, 198429 Co. vs John Bangerterfc Sons, Inc DBA CITY WHOLESALE 089.45; $23.95; - Continental 325 Bank and DOUGLAS, TONY JANE DOE, Tr. TOMMY SORENSEN, I, C. EATON DOE II I, II, JOHN DOE |