Naylor v. Salt Lake City

| Utah | Jan 15, 1894

MINER, J.:

This action was brought by the plaintiff against the defendant for damages sustained by him through the alleged negligence of the defendant in permitting obstruction and stone piles to remain in one of the streets of Salt Lake City without being properly guarded and lighted.

It appears that the plaintiff was driving his horse and cart along one of the 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 the city railway track, which overturned the cart, and threw it against a passing car, which dragged him a distance of ten feet and injured him. There was no guard around the stone pile and.no light upon it, but a large electric light was burning a short distance away, which lighted the street.

The Mountain Stone Company had a contract with Salt Lake 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 place in question and there left for the completion of the work for the city and the company. The testimony is conflicting as to when and for whom the stone were delivered and how long they had remained upon the ground, but it sufficiently appears that even if the crosswalk had been completed at the time of the accident, yet a pile of unused stone still remained upon the ground in the street where the accident occurred. These stone were the remnant of those left and they had been upon a conspicuous part of the street for a time varying from three to twelve days before the accident, and additions had been made to them from time to time by the Mountain Stone Co. to build these walks in accordance with, their contract.

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.

The 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 the railway company to keep their tracks in repair, and that under such section the city is not liable. There 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 negligence on the part of the city and the company was submitted to the jury under proper instructions from the court, and the jury found the issues in favor of the railway company and against the city.

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 that 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 incomplete 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 exception 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 it was given under the influence of passion or prejudice. We have examined the testimony bearing upon the injury received by the plaintiff and are satisfied that while a smaller sum might have been sufficient to satisfy the damages sustained by the plaintiff, yet it is not so clearly excessive as to justify this court in reducing it. This matter having been passed upon by the jury and by the trial court, we do not think it proper to disturb it now.

TJpon the whole record we find no error. The judgment of the trial court is affirmed with costs.

Bartch, J., and Smith, J., concurred.