13 Utah 243 | Utah | 1896
This suit was brought in consequence of alleged carelessness of the defendant company, which resulted in personal injury to the plaintiff. When the evidence had been introduced, the court granted a motion for a non-suit on the ground that the plaintiff was guilty of oon-tibutory negligence, and afterwards denied a motion for a new trial. These rulings are assigned as error on appeal. At the time of the accident the defendant was operating a street car railway in the city of Ogden, and the injury was caused on its line on Washington avenue where it intersects with First street. The plaintiff had delivered a load of hay to one Anderson, and on his return passed through a private alley, just north of First street, over the sidewalk, which is one rod wide, onto said avenue, which is eight rods wide, and then, turning slightly to the south, continued across the eastern portion-of said avenue in a westerly direction, and turned his horses to cross the defendant’s track, when the collision occurred. Extending north from First street there is a row of shade trees at the edge of the sidewalk on the avenue, and electric poles about 100 feet apart, on the middle thereof, and the car track is on the west side of the electric poles. These trees and poles obstruct, from the sidewalk, the view to the north, where the car in question came from, and just after the plaintiff, who was driving slowly, and sitting on the front end of his hay rack on the wagon, had left the sidewalk, he looked to the north and south for a car, without seeing any, but did not look immediately before attempting to cross. When near the track, the electric poles somewhat obstructed the view of the plaintiff to see the car. There is some conflict in the evidence -as to how far the car was from the wagon when the gong was sounded. The plaintiff
The main question in this case arises on the action of the court in granting the nonsuit. Assuming the evidence to be true, — which we must for the purpose of a
It is evident that the record in this case does not present such a state of facts that all reasonable men must arrive at the same conclusion from a consideration, of them, and yet such must be the facts proven before the question of negligence becomes one of law for the court. Nor are there such prominent and decisive facts proven concerning the appellant’s conduct on the occasion of the accident as to warrant the court in pronouncing it such contributory negligence that in law he is not entitled to recover. Where the propriety and reasonableness of the acts and conduct of the parties at the time of the accident can be properly or correctly determined only by a consideration of all the circumstances connected with and surrounding the occurrence, it is within the province of the jury to determine whether there was negligence, and, if there was, whose negligence was the proximate cause of the injury. The subject of nonsuit was considered in the case of Lowe v. Salt Lake City, 13 Utah 91, 44 Pac. 1050. Our views expressed on this subject in that case apply with, equal force to this. See, also, Dederichs v. Railway Co., 13 Utah 34.
The other case referred to in the record, which was brought for damages to personal property, and tried before a justice of the peace, was afterwards consolidated with this, and the two were then tried together in the district court, and heard together on appeal, both controversies resulting from the same accident, and affecting the same parties. Therefore our intention is that this opinion shall apply to both cases. It is manifest that the trial court erred in making the orders in question. This cause must therefore be reversed, with costs, and