75 P. 381 | Utah | 1904
after stating the foregoing facts, delivered the opinion of the court.
This court held, in Holland v. Oregon Short Line R. Co., 26 Utah 209, 212, 72 Pac. 940, that “contributory negligence is a question of law only when the testimony is not conflicting, and is such as permits no reasonable difference of opinion as to its effect; but, whenever there is any doubt as to the facts, it is the province of the jury to determine the question, or, whenever there may reasonably be a difference of opinion as to the inference and conclusions from the facts, it is likewise a question for the jury. It belongs to the jury, not only to weigh the evidence and find upon the questions of fact, but to draw conclusions as well, alike from disputed and undisputed facts. ’ ’
This court, in the case of Linden v. Anchor Mining Co., 20 Utah 134, 148, 58 Pac. 355, 358, held, in the opinion delivered by Mr. Justice McCARTY, that: “It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or, because of the facts being undisputed, fair-minded men will honestly draw different conclusions from them.”
In the case of Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485, Mr. Justice Lamar, in the opinion, said: ‘ ‘ The terms * ordinary care, ’
The judgment is affirmed, with costs.