*1 292 mоrtgage. Affirmed. Costs recorded generalities, which foregoing
spite (respondent). conten plaintiff’s give succor seem to tion, and the authorities examination of TUCKETT, CALLISTER, HENRIOD that will show principles involved ELLETT, JJ., concur. circum ttpon the actually depends result case, the equities, given
stances recording act.5 effect authority been shown have
We pur preference to approves P.2d 393 470 facts mortgagee under money chase set forth above: by the trial court BRIGHAM, Brigham, E. Frank Scott an unre had Litem, such claimants where Ad Plaintiff Guardian Appellant, deed, warranty knowing that stricted v. it; rely on going to financing bank ASSOCIATION, LAKE ELECTRIC MOON nor con actual had neither bank corporation, Inc., a Defend Utah re knowledge thе vendor structive Respondent. ant and property, and interest tained an No. 11869. their own latter, to record had failed who Supreme of Utah. Court facts, knowledge of mortgage, in full 8, June approved and in effect to the bank went by accepting share their the transaction therefrom, dis but without proceeds interest.6
closing that retained herein discussion basis our
Upon the to disa- persuasive reason see no
we can by the trial court taken
gree the view de- mortgage of the prior-recorded National Bank First
fendant Zions plaintiffs’ later- precedence over the
take 213, p. Mortgages, Osborne, 381, Burger, Sec. 5. See 464 Utah 2d Pollei v. 10, Reid, 561; P.1 Kan. Jackson v. differ- on somewhat cases P.2d (1883). but where fact situations ent our consistent with at conclusions arrived Inc., Peay Bv. & N the cases of 6. Cf. herein. conclusion 1018; al., 86, 465 P.2d 24 Utah 2d et
293 ‘ '(cid:127) *2 following fifteen-year-old his Scott brother, forehead came in cоntact whose wire, grounded apparently since passed was not hurt as he brother asked thereunder. Scott were elec- wires, said, tric brother “No.” In wire, up going under Scott reached charged severely wire and was touched injured. trial found the defendant to On Miller, Ken- Morrill, R. Gerald R. Denis contributorily negligent and Scott Mulliner, Prince & Yeates, of
neth W. negli- found that the negligent and further City, plaintiff and Lake Mangum, Salt proximate gence was a cause of of each appellant. was entered for the injury. Judgment Wilde, Nebeker, L. Stephen B. defendant, appealed, and the James Nebeker, City, Lake Ray, Quinney & Salt grounds of alleging three error: respondent. That the circumstances the de- under *3 liable; strictly fendant was ELLETT, Justice: contributory negligence is not a That 2. years, ten sues lad of Brigham, a Scott liability; to defense strict injuries occasioned when personal did not warrant That the evidence high ten- defendant’s in contact with came question to of the the submission sion wire. contributory negligence. of company fur- power is a The defendant in the order the claims will disсuss We electricity of north- to residents nishing made. Colorado. and northwestern eastern Utah pair supporting a poles of defendant’s
One
Liability
Strict
charged
volts
with 7200
of electric wires
wire is
high tension transmission
A
the wire slanted
had fallen down so
things
to
dangerous
known
of the most
one
standing poles almost
from the
downward
deadly,
only
the current
but
Not
is
man.
polе
lo-
the fallen
ground
danger
away in an innocent-
is hidden
'
cated.
kill or
ready at all times to
looking wire
too
anyone
it or comes
Scott,
father,
brothers,
injure
who touches
and a
two
his
is
there
average
citizen
it. For
ar-
near to
neighbor boy
searching for Indian
were
is
knowing
wire
way
whether the
of
part of
state.
no
in
rowheads
an isolated
or
it is too late
do
Contributory
lethal until
Negligence
harmless
Therefore,
high
de-
anything about it.
Since the defendant'is not an in
duty
who transmits
gree of
is
one
safety
surer
of
of those who
be
may
high
electricity in
tension
see that
wires to
injured by coming in contact with its elec
person rightfully
harm
no
befalls
wires,
tric
pass
the jury
person
proximity thereto when that
is him-
question
on
cоntributory
negligence
guilty
wrongdoing.
self
other
part
on the
plaintiff
of the
herein.3
words,
highest degree
of care must be
Justify
Does the Evidence
a Finding
coming
prevent
used to
harm from
to oth-
Contributory Negligencef
ers.
Since the
contributory
This does not mean that one who
negligence
un
electricity
public
strictly
supplies
to the
prior
der the
rulings of this court we аre
fault,1
regard
may
without
be
liable
required,
appeal,
on
to view the evidence in
keeps
the case of one who
a wild and fero
light
prevailing
most favorable to the
cious animal. The reason for the distinc
party.4 However, it is
say
not correct to
dangerous
lies in
which the
tion
the use to
though
that a case must be reversed even
thing
put.
tois
civilization could
Our
may appear
to us that the defendant was
electricity,
exist without
and those who
negligent
and the
not contributori
supply it are benefactors
mankind.
ly negligent as matters of
fol
law. The
Therefore,
high degree of care
re
lowing provision
VIII,
found Article
may
quired
reasonable care
said
Section
of the Utah Constitution:
potential danger
in
great
view of the
**
In equity
appeal
cases
neg
The amount
care to avoid
volved.
may
be on
of both law and
always
ligence
varies with
harm
risk
fact;
cases at law the
shall be
is known
under the circumstances
questions
of law alone.
*.5
We,
ought to be known to exist.2
there
fore,
reject the contention of the
Wherevеr it is said that
canwe
re
absolutely
in this
verse a trial
case is
court if the facts as estab
plaintiff regardless
negli
liable
lished
the evidence
will not sustain the
gence.
it is meant that the court commit-
*4
Am.Jur.2d,
Electricity, Gas,
1. 26
3. Sec. 15 of the
and
annotation in 174 A.L.R.
page
(1948).
§
Steam 39.
at
1095
Am.Jur.2d,
Electricity, Gas,
Hackett,
389,
26
2.
and
4. Charlton v.
11 Utah 2d
42; annotation,
(1961).
Steam §
ted an error can- of the to sustain verdict is evidence This court on did. rule A not reviewable. on of not a trial court the facts [Citations reverse omitted.] jury’s party gamble may not on ver- error of if there an law be only case hut later, displeased dict then when law. sufficiency verdict, challenge of theоry of In the instant case the support it. the evidence to liability one of strict was Stuchlik, v. 91 part defendant to which contributo In of Christensen of the case 280, 504, 278, 281 ry (1967), negligence not a defense. Idaho 427 P.2d would However, requested and the court said: given an instruction to be caused appellant The here to failure of negligence of regarding the issue a motion for present the trial court plain plaintiff. Since only not foreclosed directed instruction, the trial requested such tiff of his mo- trial from consideration court for it. cannot reversed court notwithstanding judgment tion for interpreting decisions but under nor instruc was made No motion Procedure, Federal Rules Civil verdict, and requested for a directed tion аppellate precludes the court such failure granted one could have court while the sufficiency reviewing from case the evidence in the his own motion * * * the verdict. evidence sustain not a ver that it would sustain was such in such a reversible error dict, it is not still Smith, v. 34 case of Law Utah to do so.6 fail the trial court for case 394, 98 this court held: (1908), P. 300 trial was * for nеw * * motion No evidence, therefore, If the so court the trial plaintiff, made conflict, without such no con- opportunity to correct not was flicting permissible, inferences are or ff jury. appellate by the An if, verdict rendered case, such be the when all evi- do that ought not to the inferences together with dence recent trial court. requested of the therefrom, favorably most when deduced 837, Sinnott, 460 P.2d Price v. case still in favor considered the law: (Nev.1969), states making element essential lacks some case, toas what the out his solidly established It purely of is one law request shall be a directed there is when (1919). Foxley Gallagher, P. 55 Utah v.
297 trial, pass during tion for a the to on. The same would new unless the court legal question like cir- trial he raised he true the defendant under the involved proving by failed in some essen- a motion for a nonsuit for a di- cumstances or necessary presented a rected he tial element to make de- verdict. Unless has out either or In the instance a motion for a nonsuit for a di- fense. one the court verdict, against plain- a rected has would direct the trial court had no ; against opportunity pass upon legal tiff in the other to the defendant. suffi- trial, ciency during In either case the of the would be one evidence law, and cannot applied which would to do so unless a have motion for a upon new trial ground the uncontroverted facts. of the insuffi- cienсy presented of the evidence to it. * ** a request If to direct a ver- When, however, a motion for a nonsuit made, required dict is the trial court is or a motion for a directed verdict has * * * grant or refuse it. If the been made upon, and ruled the court has directing court errs in refusing or in had opportunity pass upon le- direct a verdict under such circum- gal suffiсiency of the precisely evidence stances, the error is one of law which is upon same as a motion for a new ** by reviewable this court This *. trial, motion, and hence the latter court, court, no more than the trial ex- purposes review, of a may dispensed into the purpose amines evidence for the ** * with. it, of weighing or purpose fоr the of de- The reasons behind the pre rule which termining whether under the evidence an appellate vents reversing court from not; certain facts are or established but solely law case because evidence does only we have recourse it pur- for the support the its not verdict are function pose determining what the result shall оnly the action of the trial to review applied be when the law is to the undis- court, not cannot does review puted or upon conceded facts which itself, jury the actions passed directing trial court in either does not review issues * * * refusing to direct a verdict. except not to affirm the were raised below trial court.7 party case a desires to [I]n challenge upon appeal, the burden is the verdict On ground appellant the trial court verdict is sustained convince us that by evidence, appellant by so a mo- committed error and not that the he must do Producers, (1969); 7. Limb v. 5 Moore Fed. Federated Milk Utah 2d P.2d 290 50.05(1). Pro. facts, finds and in award. are unable the case. We won have general applies of a the case any error any reversible find by explained judge de- law as order to and we judge, trial rulings made at a case arrive verdict. that which to do cline jury only finds the court. lower requested never *6 facts, applies and the court the law thereto are No costs ! affirmed. is judgment The and renders the verdict. Instead of award- awarded. ing damages plaintiff, jury TUCKETT, JJ., con- CALLISTER merely damages determined the amount of cur. which finding he had sustained. This is ELLETT, By not Opinion findings inconsistent with the other as Further Justice. inconsistency in a an damage sees amount of dissent which he sustained The Rule exists. by any none is at all not affected special verdict determination U.R.C.P., trial court permits whose fault was the cause thereof. 49(a), jury from the special verdict require a disputed There were three issues to be upon findings returned are written wherein determined at the trial of this matter: court The of fact. disputed issue each negligent Was defendant and was it a found facts as to the applies the law then proximate plaintiff cause? (2) Was the verdict. and renders cоntributorily negligent, it a prox- and was imate cause? The amount of dam- was devised re- special verdict ages. hindsight While now reveals that apply attempting jury lieve necessary was not determine the amount complicated to the facts case in a law damages, there inconsistency is no to the Instructions arriving a verdict. at knowing pre- the answer. It was a wise jurors simplified, and the are jury thus by judge, taken caution that this so therefore, upon func- concentrate may, court on find that there was viz., them, to find belong to which tions error and that the verdict should have been general A verdict facts in case. not favor would always honestly at should arrived necessary to have another trial. We could upon special a judgment based a same a simply order the trial court to render honestly are the facts wherein in favor judgment found. damages by jury. amount of proceeded to jury “The says, dissent .The by limited is Supreme Court damages.” While him award
determine 9) VIII, Section (Article the Constitution or withholds gives is the law It law, consider errors the trial court is speciаl favoring me verdicts unfair judge not so restricted. If the who tried ignored plaintiff should be and those fa- thought this case gave a false voring given I effect. answer to a in the agree that the reverse is likewise would he should it, not true,” have received or he appears to be an endorsement of the granted should have a new trial. If the strange finds doctrine that where a evidence was such that reasonable men damaged a certain could disagreed answer, have amount that there no lia- but also finds is then it should not have been submitted to bility defendant, the defend- jury, and the judgment could required pay anyway. ant should have despite been the answer. CROCKETT, Chief (dissenting). Justice try this justice
When we on court to do It difficult tоme reconcile the case, jurors in a law we become and there- principle of justice under the law by give litigants notice to that if are they concept procedure that court like ma- below, judgment dissatisfied with the chine blindly which rolls inexorably so can appealing, have a new trial and if on that neither the trial nor court they got nоt think just WE do able to rectify impresses what me below, they get we will see that it regard- *7 injustice. as an say obvious I this because less of whether any there were errors of the effect of this away decision is to take during law committed the That is trial. from the 10-year-old boy, a spe- a great too a burden for and not a function cial verdict in which the jury found he hаd of this court. should not We reverse the damages suffered in the sum of ac- $736.80 simply disagree trial court because we expenses (special tual damages) and $2500 jury. the general damages which think I it fair to HENRIOD, they assume that (concurring). intended and believed he Justice towas receive. add, I I feel concur. inclined to how- ever, my opinion that in sug- the dissent quеstion The Why arises: not enter a gests approval subtle of the welfare judgment on that verdict? The answer state, fault, the liability doctrine of without that there is an inconsistency because judges an might intimation that better plaintiff guilty contributory of negli- workers, employed as case gence. modern- question The next —all arises: Which eye-catchers, trend all presumably in verdict of prevail? should —and justice. dissent, say- name of in just Wouldn’t logical as to honor the- ing view “In of such conflict it seems to favoring ignore and
<300 aspects procedure: these of to as vice correct favoring the defendant
'th'e plaintiffs requested instruction (1) that it seems conflict of such Ih view vérsa? duty im- did deal of care with the speсial fa- verdicts No. 'to me unfair child, to which would seem posed ignored and Vo'ring plaintiff should be part assumption of indicate effect. favoring the defendant those plain- of that issue plaintiff’s counsel is likewise the reverse agree that T would contributory negligence sub- tiffs would be finding that after the facts true. From mitted; did not make motion that he contributory nеgli- guilty of issue; on that for a directed verdict his caused proximately gence, and Neverthe- did he ask for new trial. nor jury proceeded to determine injury, less, particular of circumstances under damages men- him the above and award case, trial court I do not think tioned, logical is that conclusion this court should consider themselves and confused the various jury was rectify injustice. powerless to submitted. verdicts My with the conclusion consistent foregoing, to and even In addition spirit purpose proce- rules of our cannot important, is the fact that I 'more dure. any evidence whatsoever see basis U.R.C.P., 1(a), provides Rule plain- submitting justify 'the that: my jury. It tiff’s negligence brother, observing his older 'opinion that in * * * liberally they shall be construed wire, preceded him under who just, speedy, inexpen-
i secure attempted making inquiry before action; every sive determination degree at least pass, he exercised and Rule 51 states that: boy years age which a ten care expected to observe, (The main opin- [*] Notwithstanding the forego- requirement, contrаry). ing [stating objections and suggestion ion makes no court, grounds appellate error for the defendant was therefore It therefor] submit, its discretion and in the interests trial court to request, and for the fail- contributory justice, may review plaintiffs the issue give jury. an instructon. ure negligence to the *8 court, supporting and case law this text There both fairness the deсision justice.1 doing opinion is practical the main view müst concede T court, exceptions p. al- Appeal 332, in the trial Error senee § 1. G.J.S. -See submitting general rule, leged exception 1077, noting- issues errors to the " jury may when ‘stktiñg-'that," “notwithstanding the ab- be considered
-301 (1-) reasons discussed For above: impropriety
there was an obvious ques- submitting instruction negli- plaintiff’s contributory
tion of the jus-
gence there no evidence where was so;
tify ar- doing special verdicts inconsistent; were
rived at themselves seem to indicate verdicts, my
was confused
opinion justice interests would by remanding
best be served this case for a
retrial all issues.
Stephen SIMPSON, Appellant, Plaintiff
v. CORPORATION,
GENERAL MOTORS Respondent. Defendant and
No. 11630.
Supreme Court Utah. 5,
June required justice.” though below, exсeption in the interest Cit no toas taken ing, N. Y. Con. R. R. Co. v. Mass. fair because a trial was Bonding Co., 243, & Ins. 184 N.Y.S. And cf. v. Elevator had.” Sutton Otis App.Div. 438, 912, 437, Co., 85, affirmed 135 N.E. 68 Utah P. 233 N.Y. wherein the court states court held that circumstances justice give that “if was error submit in the interest of failure to ap of the defendant insurer’s instructions reviewable an * * * liability appellate though peal, were such instructions may plenary power, requested. reverse under its al-