67 P. 670 | Utah | 1902
This is an action in which the respondent seeks to recover for injuries alleged to have been caused by the negligence of the appellant. The answer denies the alleged negligence, and alleges that “whatever injury the respondent did sustain was caused by his own carelessness.” The sixth instruction given by the court is as follows: “The jury are instructed that, even if they find from the evidence that the plaintiff was guilty of negligence which contributed to the injuries he complains of, yet he would be entitled to recover against the defendant if the jury should further find that the defendant, after discovering the plaintiff’s negligence,
It is ordered tbat tbe judgment of tbe lower court be reversed, at respondent’s cost, and tbat tbe case be remanded for a new trial.
I can not concur with my brethren in this case. In tbe instructions to tbe jury tbe questions of negligence and contributory negligence were fully discussed. Instructions Nos. 6 and 7, as recited in tbe majority opinion, were inaccurate in some respects, but operated to tbe prejudice of tbe plaintiff, and not to tbe appealing party. These instructions leave out an important element. The more correct rule on tbe subject of contributory negligence would be tbat, if tbe negligence of tbe defendant, which contributed directly to cause tbe injury, occurred after the danger in which tbe injured party bad placed himself by bis own negligence was, or by the exercise of reasonable care might hare been, discovered by the defendant in time to have avoidéd the im jury, then tbe defendant was liable, notwithstanding tbe negligence of tbe injured party. Tbe clause in italics was omitted from tbe instruction. Donohue v. Railway Co. (Mo.), 2 S. W. 424; Frick v. Railway Co., 75 Mo. 595; Baltimore & O. R. Co. v. State, 33 Md. 542; Kelley v. Railroad Co., 75 Mo. 138. If, by tbe exercise of reasonable care, tbe defendant could have discovered tbe plaintiff in time to avoid tbe injury in question, notwithstanding tbe plaintiffs* negligence, it was its duty to do "so. Young v. Clark, 16 Utah 42, 50 Pac. 832; Shear. & R. Neg., secs. 99, 100, 484. Tbe words, “but went ahead wantonly, and injured him,” as used in tbe sixth instruction and in the latter part of tbe seventh instruction, to