151 P. 341 | Utah | 1915
Genevie Candland brought this action to recover damages for an alleged personal injury. A judgment was rendered in her favor. The defendant appeals. The judgment was rendered and entered on the 30th of April, 1914. On May 2nd a motion for a new trial was served and filed. The motion was overruled on the 9th, of which notice was given on the same day. On May 27th, the court granted the defendant “60 days to prepare, serve, and file a bill of exceptions”; on July T7th, further time, to and including August 16th; on August 11th, to and including September 15th; on September 12th, to and including October 15th; on October 13th, to and including November 2nd. Genevie Candland died on the 5th of August, 1914. On the 2nd of October of that year, an administrator was appointed. On the 22nd of October, the administrator was substituted as the party plaintiff. On the 27th of October the defendant served on the attorneys for the administrator, who also represented Mrs. Candland in the action, his proposed bill of exceptions. It was settled on the 30th of October. On that day the defendant served on the attorneys for the administrator, and filed, his notice of appeal. Within thirty days thereafter the transcript on appeal was filed.
A motion is made tó dismiss the appeal on alleged defects in the notice of appeal, and uncertainty of descriptions of the judgment appealed from. The notice reads:
“The defendant does hereby appeal from the verdict and judgment entered on the verdict in the above-entitled cause on or about the 30th day of April, 1914, and from the order overruling a motion for a new trial, made and entered on the 9th day of May,-1914, and from the whole thereof.”
Of course, no appeal lies from the order overruling the mo
A motion also is made to strike the bill of exceptions on grounds: (1) That when the court, on July 17th, extended the time to serve and file a bill, the time had expired, and that the court then was without power to grant
The second ground is based on the proposition that after the death of Mrs. Candland, and before the appointment and substitution of an administrator, the court was without power to grant an extension of time to serve and
■ The defendant, under contract with Salt Lake City, was engaged in curbing and guttering streets near where the deceased resided. It is charged that he negligently left excavations exposed, unguarded, and unlighted, by reason of which plaintiff’s intestate, in the nighttime, and on the 20th of September, 1913, stepped into an excavation, thereby wrenching and spraining her leg, “so that said plaintiff ivas and still is made to suffer great mental and physical pain and anguish and so that she was made and still is sick, sore, and lame, and so that she has been confined to her bed from the 20th day of September, 1913, until now, and is still so confined, and so that said leg has been wholly useless to her, and so that she has thereby been prevented from walking and from performing her household duties as a housewife; that, by reason of the aforesaid injury, said plaintiff has been and for all time will be almost totally disabled, and has been and will be put to great expense in curing said injury, to wit, $800”; and “that by reason of the matters and things hereinbefore set forth, plaintiff has suffered damage in the sum of $5,000.” She had judgment for $500.
Complaint is made of the court’s refusal, at the conclusion of all the evidence, to direct a verdict in the defendant’s favor. The grounds of the motion are: (1) That in the complaint it is alleged the excavation in which the plaintiff’s intestate stepped was at the “northwest corner” of two named streets, and that the proof showed that she
As to whether the defendant had finished the work and had turned it over to the city before the accident, .and as to whether there was an excavation at the place in question and the extent and character of it, the evidence is in conflict. So all, that was for the jury.
Evidence was given to show that the excavation was about a foot and a half or two feet deep, that it was made by the de: fendant, that a plank extended over it, and that the excavation was left unguarded and unlighted by the defendant. The deceased’s sister testified that the night was dark, and that she, preceding the deceased, walked on the plank over the excavation; that the deceased, following her, stepped or fell into the excavation; and that the witness returned and assisted her out and to her home near by. Because of severe illness at the time of the trial, plaintiff’s intestate was not a witness in the case. There is no direct evidence what knowledge she had of the excavation. 'From her residing near by, it is argued, in effect, that it ought to be conclusively inferred that, she had full knowledge of the extent and character of it. No such conclusive presumption can be indulged. And further, though she had such knowledge, still that alone would not render her conclusively guilty of negligence in attempting to cross the excavation. There is no evidence to show that she was careless in her movements, or failed to use due care in observing where she was walking. At least there is nothing to show that she was conclusively guilty of negligence in such respect. We therefore think all these questions were for the jury.
It also is claimed error was committed in allowing plaintiff’s intestate, over the defendant’s objections, to show that $250 was a reasonable value for the services of the doctor who attended her leg. It is claimed that that was improper because such damages were special and as such ought to have been, but were not, alleged. We have referred
We come now to the charge. The next day after the injury a doctor was summoned. A couple, of days after that he turned the case over to a bone specialist. He found the ankle and knee joint inflamed, swollen, tender, and painful.
"In determining the amount of damage to be awarded, if you find that the plaintiff is entitled to damages, you are only to award damages sustained which did in this case naturally and directly result from the wrongful acts alleged and from the injuries described as disclosed by the evidence.”
Evidence was given to show that one doctor regularly attended plaintiff’s intestate for the injury to her leg, that another attended her for other disorders, that two
For these errors must the judgment be reversed. What dis
As we view the matter, we think the cause does not survive. It, however, was merged in the judgment which, had it not been disturbed, could have been enforced. But
The order therefore is that the judgment be reversed, and the case remanded, with directions to vacate the judgment and to dismiss the action. Costs to the appellant.