88 P. 668 | Utah | 1907
This action is one for damages arising out of the same facts as the case, just decided, entitled McCollum v. Southern Pac. Co., supra, p. 494, 88 Pac. 668. The plaintiff in this cas© was a passenger on the same train with the plaintiff in the case just referred to. Plaintiff’s ticket was purchased at the same time and place, and the evidence in this case was practically and substantially a l-epetition of the evidence in the MeOullom Case, supra. The objections in this case occuri-ing in the course of the trial, and the assignments of error, with one exception, are also substantially the same as in that case. This case is therefore controlled, - in so far as those assignments are concerned, by the McCullom Case. In view that the errors now under review have all been decided adversely to the contention of appellant, in the MeOullom Case, they cannot be sustained in this case.
The only objection presented in this case, not considered in the MeOullom Case, is an exception to and a criticism upon a pox-tion of the court’s instruction to' the jury. ' The portion excepted to and criticised is as follows: “It was the duty of the defendant ... to carry him safely and properly from Eeno to Ogden, and use due care to see that the car in which he°was being carried, was kept in a decent and habitable condition, and so as to afford that degree of comfort to plaintiff and other passengers which is usual and practicable in cars of the kind that the.one in question is shown by the evidence to be.” The objection is aimed at what the court said in respect to “other passenger's.” This, it is contended, could well be construed to permit the jury to assess and allow damages to plaintiff for injuries suffered by others. If this were so, the instruction would be faulty as a matter of law. 'B'ut this is not the natural or obvious meaning of the language used, when read in connection with
For the reasons stated in the case of McCullom v. Southern Pacific Company, supra, as well as those above given, the judgment is affirmed, with costs.