This action was brought by the plaintiff against the defendant for damages sustained by him through the alleged negligence оf the defendant in permitting obstruction and stone piles to remain in one of the streets of Salt Lake City without bеing properly guarded and lighted.
It appears that the plaintiff was driving his horse and cart along one of thе most populous business streets in the center of the city on the night of December 7, 1891, at a moderate pace, when .the wheels of the cart ran upon 'a stone pile placed within a few feet of thе city railway track, which overturned the cart, and threw it against a passing car, which dragged him a distance оf ten feet and injured him. There was no guard around the stone pile and.no light upon it, but a large electric light wаs burning a short distance away, which lighted the street.
The Mountain Stone Company had a contract with Salt Lakе City to build the crosswalk across the street, and with the City Railway Co. to build its crosswalk between the rails of its track at the place where the accident occurred. Stone were delivered at the placе in question and there left
After the plaintiff had rested his case, a non-suit was granted as against the Salt Lake City Railway Company. The jury found a verdict in favor of the plaintiff against the City of Salt Lake for $2,000, and found in favor of the Mountain Stone Company. The motion for new trial was overruled and the city appealed from the judgment, assigning many errors.
Thе appellant contends that if any liability exists for the injury complained of, it must rest upon the railway company and not with the city, anc[ claims that under Sess. L. 1890, p. 59, sec. 2, (see brief of appellant, supra,) that it was the duty of thе railway company to keep their tracks in repair, and that under such section the city is not liable. Thеre is no testimony tending to show that the railway track was out of repair or that there was any obstruction upon it at the time of the accident. The stone in question were more than 2 feet from the track in the traveled part of the street over which the city had control and supervision.
The whole question of negligenсe on the part of the city and the company was submitted to the jury under proper
We also find that no objection ■ or exception was taken to the granting of the non-suit as to Salt Lake City Railway Co., nor was any error assigned upon the making of such order granting a non-suit.
We are also satisfied that the evidence shows that the obstruction had been in the street such a length of time-before the accident as to justify the presumption thаt the city had, or should have had, by the use of reasonable care and foresight, notice of such obstruction a sufficient length of time before the accident to have .properly guarded or removed the same.
The charge of the court upon this subject was accurate and complete, and the jury found for the plaintiff thereon. It is also claimed that the court refused to allow counsel for the appellant to cross-examine the witnesses claiming that there were three parties defendant Avho were represented by separate counsel. With reference to this objection the record is incоmplete and does not fully show what the ruling was. If such ruling was made no exception was-taken to it so far as appears by the record; consequently we cannot consider this question here.
Exceptions are taken to the refusal of the court to instruct the jury as requested and to the instruction as given. We find upon inspection that the abstract does not contain material parts of the charge covering the exсeption taken. Upon examination of the whole charge as given by the court, we think it fairly covered all the legal questions involved in the case and that there was no error in the refusal of the court to give the requests offered by the appellant.
The jury found a verdict for the plaintiff in the sum of $2,000, and appellant alleges this sum excessive and that
TJpon the whole record we find no error. The judgment of the trial court is affirmed with costs.