6 P. 514 | Utah | 1910
Appellant brought this action to recover damages for personal injuries alleged to have been occasioned by tbe negligence of tbe respondent. Tbe alleged injuries were caused by a collision between a street ear of respondent and appellant’s team aud wagon on, one of tbe streets of Salt Lake City. Tbe appellant alleged in bis complaint tbat tbe negligence consisted in operating a street car “at a high and immoderate rate of speed/’ in failing to keep “the car well under control,” in failing “to stop
The questions for the jury to pass on were whether the employees in charge of the street car exercised ordinary and proper care in operating the street car at the time and place; whether they, in the exercise of such care, did all that, under the circumstances, they were required to do in order to avoid the collision; whether the appellant himself was exercising ordinary care for his own safety, and whether or not he, by his own acts or omissions, directly contributed to the injury of which he complains. The jury, after considering the evidence, returned a verdict in favor of respondent, upon which the court entered judgment, and hence this appeal.
The state of the evidence is such that the jury would have been justified in finding a verdict for either party. The principal assignments of error, therefore, relate to the instructions. In this regard counsel for appellant assert that the court erred both in charging the jury and in refusing to give certain requests offered by them. After stating the issues as contained in the pleadings, the court charged the jury as follows:
“In order to recover in this action, the burden is on the plaintiff to prove hy a preponderance of the evidence that on or about the 3d day of July, 1906, he was injured by reason of the carelessness or negligence of the defendant, and that said carelessness or negligence consisted of some one or more of the acts or omissions on the part of the defendant alleged in the complaint as negligence; and, second, the extent of such injury, if you find that he was injured, and the amount of the damages resulting therefrom, if any. If you find from the evidence that the plaintiff was so injured by the negligence of the defendant, as alleged, without fault on his part, your verdict should be for the plaintiff. If you find from the evidence that the weight of the evidence upon any of these issues is in favor of the defendant or that it is equally balanced, you should find the issues for the defendant.”
Nor is the contention sound that what was said in the succeeding instruction was in conflict with what the court had told the jury in the one complained of. Properly interpreted and applied, the statements contained in the two instructions were not in the least conflicting, but were, in fact, harmonious. It might with as much reason be contended by respondent, if the verdict had been against it, that, if the court had omitted the qualifying phrase complained of, the instruction was an unqualified direction to the jury to find for the plaintiff, regardless of his contributory negligence, and that the instruction with respect to contributory negli
Another assignment relates to a part of instruction N>. 18 in which the court, in speaking of the traveler’s duty while passing along or in crossing a, street car track, among other things, told the jury that, ‘before crossing or going! upon the track, he must make use of his senses as a person of reasonable prudence and ordinary intelligence would do under like circumstances for the purpose of ascertaining whether or not a car is within sight or hearing upon the track.” It is contended that in using the foregoing language the court in effect told the jury that, where
It is further contended that the court erred in refusing the appellant’s request to charge with respect to the duty of the motorman in approaching the huckster’s wagon to which we have referred. While the court did not instruct the jury in the precise language in which appellant’s request is couched, yet we are clearly of the opinion that the court correctly informed the jury what the duties of the motorman were in passing along a street under the circumstances disclosed by the evidence. In view of the- whole evidence and all the instructions when considered together, we cannot see wherein appellant has any cause for complaint with respect to the court’s instructions upon the subject covered by the request in question.
Appellant also predicates error upon the refusal of the court to give his request wherein the jury were directed that “it is not negligence as a matter of law for a
Counsel offered two other requests, designated as “B” and “C,” which were refused', and they now urge tbat such refusal constituted error. Those two requests in somewhat different language referred to tbe same matters tbat we have already considered. If we are right in tbe conclusions reached upon tbe matters hereinbefore discussed, then tbe court committed no error in refusing to give said requests or either of them.
Finally, it is contended tbat tbe court erred in giving instruction numbered 20. Tbe exception is to tbe instruction as a whole, and as it contains several
We have refrained from setting forth full copies of either tbe instructions criticised or tbe requests of counsel other than those here set forth, because it is impracticable to do this within tbe limits of an opinion. Tbe instructions given by tbe court are divided into twenty paragraphs and cover eleven typewritten pages of legal cap, while tbe requests of counsel cover several pages more. If, therefore, we bad copied all tbe paragraphs to which counsel excepted in whole or in part, we should also have been compelled to .copy all of tbe other instruction which in some way related to fhe subject in order to show tbat counsel’s criticisms were not well founded. This would have been true, also, with respect to tbe requests of counsel which were refused by tbe court. Without copying tbe whole instructions comparisons could