15 Utah 334 | Utah | 1897
This case was before us on a former occasion, and is reported in 13 Utah 275. It is an action for damages for personal injuries alleged to have been sustained because of the negligence of the defendant. The jury returned a verdict in favor of the plaintiff in the sum of $7,500, and the court entered judgment for that sum. Afterwards,
Counsel for the appellant insist that the court erred in. its instruction to the jury, wherein it stated that: “Unless you further believe from the evidence in this case-it was a usual custom or practice among sheep men, at or prior to the time of the injury, and at or near the place of the injury, to walk across the tops of the cars, and that such custom or practice was known to the defendant or its agents, and acquiesced in by them.” This-, clause, and the part of the charge which it qualifies, also appear in the charge o-f the court in the Nelson Case, above mentioned. The principal and qualifying clauses, taken together were there held to be erroneous. We refer to that case for our views on this point therein.
At the trial the witness Thomas Nelson was asked by counsel for plaintiff the following question: “ Did you consider it dangerous, if a man was walking with his face-towards the east, and the train running west, and the-train should go under a snowshed, if the timbers were
All the principal points herein referred to were also presented and decided in the Nelson Case, hereinbefore mentioned; and on the authority of that case this cause is reversed and remanded, with directions to grant a new trial.