185 P. 775 | Utah | 1919
The plaintiff, James‘H. Foxley, a minor, while traveling on a motorcycle in a northerly direction, October 27, 1918, on a public highway in Box Elder county, Utah, came in' collision with an automobile driven in the opposite direction by F. H. Gallagher, one of the defendants. The plaintiff received serious personal injuries in the collision, and his motorcycle was likewise considerably damaged.
Plaintiff, by his guardian ad litem, James G. Foxley, brought this action to recover damages for the injury so sus
The automobile was owned and driven by the defendant F. H. Gallagher; the other defendants were his wife and friends. The business upon which they were traveling appears to have been a Sunday excursion for pleasure, from Salt Lake City to Logan and return. It is claimed by respondent that appellants were engaged in a joint enterprise with the driver, F. H. Gallagher, whose negligence caused the collision, and that appellants are therefore jointly liable for the injury. On the other hand, appellants contend they were merely invitees of Gallagher, had nó control whatever over his conduct and management of the machine, and were in no manner responsible for the injury. The only evidence relied on by respondent in support of his contention as to a joint enterprise is tbe testimony of one of the appellants, Jerry Toomey, who testified in substance that he had been invited by the Gallaghers to take this trip. He said he thought he would be permitted to pay his share of the expenses. He had no understanding with Gallagher to that effect, but was told by defendant Sehaaf “it was to be fifty-fifty.” He paid his portion of the gasoline expense to defendant Sehaaf, who settled with Gallagher. This phase of the case will be referred to later.
During the trial of the ease one Charles Whitworth was sworn as a witness for defendants. He was conducting a garage business at Brigham City, was called by defendant F. IT. Gallagher to visit the place where the collision occurred on the evening of the accident. It was dark when he arrived there and was raining very hard. After describing his efforts to remove the automobile from the road and his experience as a garage man; he was asked in substance to state, in view of all he saw and did concerning the automobile, and in
On the question of the insufficiency of the evidence to sustain the verdict appellants contend that as against them there was no evidence whatever as to their negligence
“The record may show in this case that at the time the case was tried there was no motion for a nonsuit. The fact is the court expected the defendant’s counsel to make a motion for nonsuit as to some of these defendants. The court also expected and looked for a motion for a directed verdict as to some of the defendants. That was not made, and it appears to the court that the defendant Gallagher desired to have all these parties retained for some purpose, thinking he would he benefited thereby. I also expected there would be a motion for a new trial on this ground. And at the time the motion for a new trial was made I asked the parties to proceed to argue. It was submitted without argument. There was no one here to press the motion, and if there had been a motion made, I want to say now, no doubt, some of these defendants, not designating which ones, would have been dismissed. This statement may be inserted in lieu of the court’s inserting it in the settlement of the bill, because I want the Supreme Court to know just what the record was.”
The excerpt quoted demonstrates conclusively that the trial court not only understood that the evidence against some of the defendants was insufficient to sustain a ver-diet
“The verdict of a jury may also be vacated and a new trial granted by the court in which the action is pending on its own motion, without the application of either of the parties, when there has been such a plain disregard by the jury of the instructions of the court, or the evidence in the case, as to satisfy the court that the verdict was rendered under a misapprehension of such instructions, or under the ^influence of passion or prejudice.”
We are not disposed, however, to go so far as to hold that the court committed reversible error in failing to act
Notwithstanding appellants omitted to move for a nonsuit or request a directed verdict, they did, nevertheless, move for a new trial on several grounds, one of which
If, however, after failing to move for a directed verdict, appellants had also failed to move for a new trial on the grounds mentioned, respondent’s contention would have been correct and amply sustained by many of the authorities cited. Reed v. Scott, 50 Okl. 757, 151 Pac. 484; Wakely v. Johnson, 115 Mich. 285, 73 N. W. 238; Shmit v. Day et al., 27 Or. 110, 39 Pac. 870; Seeman et al. v. Levine et al., 205 N. Y. 514, 99 N. E. 158; Oaks v. Samples, 57 Okl. 660, 157 Pac. 739; Hei
Many of the cases last cited, go to the full extent claimed by respondent, that moving for a new trial on the grounds of insufficiency of the evidence and adverse ruling thereon excepted to will not save the question on appeal. Within the purview of those cases the question can only be raised by motion for a nonsuit or by request for directed verdict. Such seems to be the effect of the decisions cited from Oregon and Oklahoma.
But, whatever may be the- holding of the courts in other states under their local statutes upon this important question - of practice, the question here is no longer
“So, likewise, in case a party desires to challenge the verdict of a jury upon the ground that the verdict is not sustained by the evidence, he must do so by a motion for a new trial, unless during the trial he raised the legal question involved by a motion for a*305 nonsuit or for a directed verdict. Unless lie has presented either a motion for a nonsuit or for a directed verdict, the trial court has had no opportunity to pass upon the legal sufficiency of the evidence during the trial, and cannot do so unless a motion for a new trial upon the ground of the insufficiency of the evidence is presented to it. When, however, a motion for a nonsuit or a motion for a directed verdict has been made and ruled upon, the court has had the opportunity to pass upon the legal sufficiency of the evidence precisely the same as upon a motion for a new trial, and hence the latter motion, for the purposes of a review, may he dispensed with. In this way all the orders, rulings, and decisions of the trial court, whether made during the trial or on motion for a new trial, can he brought before this court for review, and on all of them the court need to pass judgment but once. Any other holding would bring about the incongruity of requiring the trial court to pass twice on some matters, while it may do so but once on others.”
It is not necessary to interpose any explanation as to the meaning of the language quoted. It is self-explanatory, and in the opinion of the writer effectually determines the law of this jurisdiction upon the point in question. The decision in that case is clearly decisive of the question presented here, and, as the court as now constituted is in hearty accord with both the conclusions reached and the reasons given therefor, we feel both legally and morally bound to adopt the rule there laid down as controlling in the case at bar.
Counsel for respondent have referred to several Utah cases all of which go to the point that this court will not consider questions not raised in the trial court. As such cases have no application whatever to the question presented here, we have not taken the trouble to cite them in this opinion.
The judgment of the trial court as to appellants is reversed, and the cause remanded for a new trial. Appellants are awarded costs on appeal.