109 P. 817 | Utah | 1910
Appellant brought this action to recover damages for personal injuries which it is alleged he sustained by being thrown from his wagon while driving in one of the streets within the corporate limits of respondent city. It is alleged that said street was in a defective and dangerous condition for travel by reason of an excavation which respondent had caused to be made and had negligently suffered to remain therein. Respondent denied all the acts of negligence, and pleaded contributory negligence. At the trial, after appellant had produced his evidence and rested, counsel for respondent moved for a nonsuit. The court sustained the motion and dismissed the action; hence this appeal.
Counsel for respondent have interposed a motion to dismiss the appeal upon the ground “that no judgment has ever
We shall consider tbe last ground first. From tbe judgment roll as certified up by tbe clerk of tbe district court tbe following is made to appear: After giving tbe title of tbe case, and after reciting tbat tbe cause came on regularly for trial, tbat a jury was duly impaneled, tbat witnesses were sworn and examined on bebalf of plaintiff, and tbat plaintiff bad rested, tbe record continues: “Whereupon H. J. Din-inny (respondent’s counsel) now moves tbe court for judgment of nonsuit and dismissal herein, .... and, tbe court having considered and now being fully advised in tbe premises, it is ordered tbat tbe motion be, and tbe same is hereby, granted, and tbe within case dismissed.” It is contended tbat tbe foregoing language does not constitute a judgment, and, if it is to be given any effect at all, it can be considered only as an order for a judgment. Tbe statute does not require a judgment to be in any particular form. Ordinarily a judgment is sufficient if by tbe use of
The next contention is that the appeal should be dismissed herein because the alleged judgment was not entered in the judgment book, as required by section 3195, Comp. Laws 1907. “ This section, in effect, provides that the clerk must enter the judgments in a book “called the judgment boob.” By section 3197 it is also in substance provided that “immediately after entering the judgment the clerk must attach together and file the following papers which constitutes the judgment roll.” These papers include “a copy of the judgment.” In this case the judgment roll was made up as required by said section. Section 3301 provides: “An
The question remains, however: How must the fact that a judgment has been duly entered be made to appear in the record on appeal? As we have pointed out, section 3195, supra, provides that the clerk must keep a judgment book in which he must enter the judgments, and that he must do this before he makes up the judgment roll. The duty to do these things is therefore imposed upon a public officer. The presumption therefore arises that the officer has regularly discharged the duties of his office which are imposed by law. (Lawson, Law of Presumptive Evidence [2 Ed.], p. 67.) The presumption therefore is that the clerk entered the judgment in the proper book before the judgment roll was made up. By an inspection of the judgment roll as made up by the clerk in this case nothing is made to appear' therefrom that the derk has not performed his duty. There is an affidavit presented, however, in which it is stated
We will now proceed to a consideration of tbe case on tbe merits. From tbe evidence preserved in tbe bill of exceptions (excluding tbe formal proof) tbe jury were authorized to find, in substance, that tbe street in question was within tbe corporate limits of tbe respondent city; that it was open and generally used for travel; that early in February, 1909, one Sam Bates, who was then employed in tbe water department of respondent, dug an excavation in said street for tbe purpose of exposing tbe water mains or pipes laid therein; that tbe excavation was about four feet long, about two feet wide, and from three and one-balf to four feet deep; that it was anywhere from four .to fifteen feet from tbe ditch or gutter on tbe outside of tbe sidewalk and in tbe traveled portion of tbe street; that tbe earth was thrown back into tbe excavation in a loose manner; and that, by reason of tbe rains and the flat and wet condition of the soil, water bad gathered and was standing in pools in different parts of tbe street, a portion of which covered tbe excavation in question; that tbe excavation bad remained in tbe street in sucb condition for about four days before tbe happening of tbe accident; that while tbe street was in tbe condition aforesaid, and while appellant was driving bis team bitched to bis garbage wagon in tbe traveled portion of tbe street, one of bis horses suddenly fell into tbe excavation, and immediately thereafter tbe front wheel of appellant’s wagon also went into tbe “bole,” as appellant called it; that tbis
We are of the opinion that appellant’s contention is correct. While there is nothing to indicate on which
We think the court also erred upon the second ground. Whether the city caused the excavation to be made, or whether some stranger made it was a question of fact. Again, if the jury had found thae some stranger made the excavation, or caused it to be made, the question of whether the city had or had not notice of its existence and character was also a question of fact to be submitted to the jury under proper instructions. (Jones v. Ogden City, 32 Utah, 221, 89 Pac. 1006.)
In view of what has been said, the remaining assignment is immaterial.
For the foregoing reasons, the judgment is reversed, and the cause is remanded to the district court, with directions to grant a new trial, and to proceed with the case in accordance with the views herein expressed, appellant to recover costs.