176 P. 267 | Utah | 1918
The plaintiff recovered judgment against the defendants for damages which, he alleged, he suffered by reason of having been injured through the negligence of the defendants’ chauffeur in hacking defendants’ automobile against the plaintiff, knocking him down and running over him on a public street of Salt Lake City. The plaintiff alleged that he was a street sweeper in Salt Lake City and was engaged in that work at the time of the injury. The chauffeur was backing the automobile out of a garage and, in doing so, plaintiff alleges, operated the car negligently without giving any signal or warning, contrary to a certain ordinance of Salt Lake City which is pleaded, and that by reason of such negligence plaintiff was injured as aforesaid. The defendants admitted the ordinance and that the plaintiff was employed by the city as aforesaid, and denied every other allegation contained in the complaint.
The ordinance in question, so far as material here, provides:
“No person in charge of a vehicle shall back the same without ample warning having been given by him; and while backing unceasing vigilance must be exercised not to injure persons or property in the rear,” etc.
The defendants insist that the plaintiff did not establish the ownership of the car, and that there is no evidence that the chauffeur at the time, of the injury was engaged in the business of the defendants, or either of them.
The defendants, at the close of plaintiff’s evidence, interposed separate motions for nonsuit. The court overruled both motions, and they now insist that the rulings'of the court constituted prejudicial error for the reason that the evidence fails to establish ownership of the car and also fails to show that the defendants, or either of them, was responsible for the chauffeur’s acts in operating the car at the time of the accident. At the close of all of the evidence, defendants also requested the court to direct a verdict in their favor, which was refused, and which refusal is also assigned as error. Both assignments will be considered together.
We have a statute, chapter 80, Laws Utah 1915, which was in force at the time of the accident, which requires every owner of a motor vehicle to register such vehicle in the office of the Secretary of State. The application for registry, for the purpose of identification, must be made on blanks provided by the Secretary of State, and must contain the name, place of residence and address of the applicant, together with a brief description of the vehicle to be registered by giving its name and the name of the manufacturer, together with certain numbers and “motive power.” The application must be signed by the owner of the vehicle and must be “verified by oath or affirmation.” Upon the application being made as aforesaid, the Secretary of State must assign to each vehicle a distinctive number and must record the same in his office. The number must be furnished to the owner of the vehicle on duplicate-plates which must be conspicuously
The foregoing, in substance, constitutes plaintiff’s evidence, except that he called Mrs. C. B. Reynolds, one of the defendants, as a witness, who testified that her husband at the time of the accident was away from home; that she had neither authorized nor directed Neff to take out the car on the morning in question, and that she did not know that he had taken it out until after the accident had occurred; that Mr. Neff was staying with her and her husband at her request and with the consent of her husband at the time, and had from time to time taken her out in the ear at her request.
Defendants’ counsel insist that the evidence is insufficient to sustain the verdict. In this connection, counsel contend that the applications made to and filed with the Secretary of State are not sufficient to establish the ownership of the car. We are unable to conceive why our statute
“Evidence that the automobile which caused the plaintiff’s injuries displayed a certain license number, and that this number was registered in the office of the Secretary of State in the defendant’s name as owner, makes out a prima facie ease of ownership in the defendant. ’ ’
To the same effect are Huddy, Automobiles, section 60, and Davids, the Law of Motor Vehicles, section 40.
Counsel for defendant, however, contend that the application for the year 1917, which was obtained in January of that year following the month of November in which the accident occurred, cannot be considered as evidence for any purpose, since the statements therein contained were
The evidence respecting ownership was therefore sufficient to take the case to the jury, and hence the
It is, however, further contended that the court erred in denying the motions for nonsuit for the reason that there was no evidence establishing the relation of principal and agent, or master and servant, between Neff,
Upon this question defendants’ counsel cite and reply on the ease of McFarlane v. Winters, 47 Utah, 598, 155 Pac. 437,
In view of what has been said, it follows that the court did not err in denying the motions for nonsuit upon the latter ground. Nor can it be held that the evidence, as a matter of law, is insufficient to sustain the verdict. True, the jury might well have found a verdict in favor of the defendants, or in favor of one of them, and had they done so we would be equally powerless to interfere therewith.
Neither did the court err in refusing to direct a verdict as requested by the defendants.
It is next contended that the court erred in charging the jury as follows:
"You are further instructed that a street sweeper, or a pedestrian who undertakes to use the street in the line of his employment where it is frequently used by automobiles or other vehicles, has the right without looking and listening to presume that drivers of automobiles are observing7 the law, and they will so reduce or gauge their speed and are so conducting themselves so as to meet the obligations which circumstances demand of them at such places. ’ ’
Counsel for defendants insist that the foregoing instruction does not correctly reflect the law respecting plaintiff’s duty while on the street. We are of the contrary opinion. The instruction, in effect, merely informed the jury that the plaintiff had a right to assume that the driver of the automobile would exercise ordinary care in driving the car. This cer
“In determinging the question whether Neff was a servant of the defendant, you are at liberty to take into consideration the actions of Neff in driving the defendants’ car, purchasing gas and other supplies for the car and having
It is insisted that the court erred in assuming facts which' should have been left for the determination of the jury. Por example, counsel say that the court assumed that the car was defendants’ car, which was a question of fact for the jury. True, the instruction is not as happily worded in that regard as it could have been, but a mere cursory reading of it shows that by the terms used the court did not intend to, nor did it, assume any fact. What it said in that regard was merely as identifying the car in question and was not a statement that it was defendants’ car.
Again, it is insisted that the court assumed the fact that Neff purchased gasoline and other supplies for the car in question, and further assumed that the gasoline was charged to the defendants. Here it is again clear that the court did not assume the things stated as facts, but merely referred to them for the purpose of telling the jury that they were authorized to consider the things enumerated together with all other facts and circumstances in evidence in determining the ultimate question of liability. This is made doubly clear when all of the other instructions are considered in connection with the one here complained of.
The foregoing covers all of the errors argued in the brief; and, finding no prejudicial error, the judgment should be, and it accordingly is, affirmed. Appellants to pay costs.