17 Utah 406 | Utah | 1898
This is an action to recover damages for personal injures alleged to have been sustained by the plaintiff, through the negligence of the defendant company. At the trial the jury returned a verdict in favor of the plaintiff, and the defendant prosecuted this appeal.
The evidence shows substantially that the injuries of which the plaintiff complains were received on December 4, 1894; that on the afternoon of that day the plaintiff, at a point opposite the Cullen hotel, on Second South street, Salt Lake City, started to cross the street, which extends east and west, having two street-car tracks thereon at that point, and the motorman of a west-bound street car, seeing him, stopped the car, thinking the plaintiff wanted to get on; that the plaintiff had in his hands a transfer ticket, which he handed to the conductor of the car, and, on being asked whether he wanted the oar, the plaintiff replied, “No, go on;” that he, being in a hurry to cross the street, immediately stepped around behind the car, then across a space between the tracks, seven feet wide, and on the south track, where he was struck by an eastbound car, and injured; and that, when he started across the street, he looked for a west-bound car, but not for one bound east. The plaintiff, in his own behalf, testified : “I looked across the street, and there was a car com
Under this state of facts, the appellant, among other things, requested the court to charge the jury as follows: “The court charges you that the plaintiff cannot recover in this action for any injury sustained by plaintiff prior to the time when the car was first brought to a full stop, after the collision.” This request was refused. As will be observed, we have referred to the testimony at considerable length. Our purpose has been to ascertain whether there is any evidence which justifies the refusal of this request, and the conclusion is irresistible that the abstract contains no legitimate proof which shows negligence on the part of the company before the point of time designated in the request. It is shown that the car, at the time of the accident, was running at a low rate of speed; that the motorman was at his proper place on the car,
The plaintiff, in crossing the street, was bound to exercise the same degree of care as that which it was incumbent upon the railway company to exercise.
In Hall v. Railway Co., 13 Utah. 243, this court said “As the company, however, is held to a degree of care-commensurate with the circumstances of each particular case, so, likewise, is the citizen, for he cannot recklessly place himself in the way of danger, and then complain off injury. He is bound equally with the company to the exercise of a proper degree of care, skill and vigilance. He has no exclusive right to any particular portion of the street, any more than has the railway company. Ordinarily, he may walk or drive upon the track, or cross it;, but because cars are designed to run only upon the track,.he cannot heedlessly obstruct its passage without assuming the risk of injuries for which he may have no redress-The car has the right of way in case of meeting a person or vehicle .on the track, but each party, in order to avoid accident, is bound to exercise ordinary care, and such reasonable prudence and precaution as the surrounding;