21 Utah 76 | Utah | 1899
This is an action in which the plaintiff seeks to recover damages for injuries alleged to have been received by him through the negligence of the defendant.
It is alleged in the complaint, <£ That the defendant, in violation of its duty, so negligently managed and operated its car that the said plaintiff while crossing the railway track upon said street with the horse and cart, and while in the exercise of due care on his part, was struck by the car and thrown from the cart upon the ground and greatly injured. That the negligence of the said defendant in managing and operating its car consisted in this, that notwithstanding the fact that the plaintiff was crossing the said track, with his back toward the advancing car, and,
The answer denied these allegations, and alleged contributory negligence on the part of the plaintiff.
The jury returned a verdict in favor of plaintiff for $800; a judgment was rendered for that amount against the defendant, from which judgment the defendant appealed.
1. The first objection raised by defendant is that the witness Tyson was permitted to testify that the motorman in charge of the car by which the plaintiff was injured, within a few minutes after the accident, and at the place where it occurred, and while the agents of the defendant, in charge of the car, and the plaintiff were still present, in answer to the question by witness, i£ Why did n’t you ring the bell ? ’ ’ replied, ‘11 forgot it. ’ ’
This testimony was introduced in rebuttal. F. W. Blaeklock, the motorman, had, before the introduction of the foregoing testimony, been placed upon the stand, and had testified that when he saw plaintiff upon the track, he had rung the bell.
This reply of the witness Blaeklock, made in answer to the question asked by Tyson, is inconsistent with his statements upon the witness stand, and was therefore properly admitted in rebuttal.
2. The second objection is that, “The court erred in refusing to instruct the jury as requested by defendant, that if in the hurry of the moment, or in a moment of
The plaintiff’s evidence sustained the allegations of the complaint. By reference to the complaint it will be seen that the negligence complained of is that notwithstanding the fact that the plaintiff, when injured, was upon the track with his back to the advancing car, and in plain sight of the motorman, yet the motorman upon the car, without giving warning of the approach of the car, or slackening its speed, although he had a fair chance and the ability to stop it before striking the plaintiff, ran the car against the cart in which plaintiff was riding and injured him.
In view of the evidence sustaining these allegations said instruction was properly refused, for notwithstanding the jury might have considered that the plaintiff was guilty of negligence on his part, yet if, as the evidence tended to show, the jury were satisfied that the motorman was careless or reckless in failing to either stop the car or to give the defendant warning of its approach, they were warranted in finding for the plaintiff. Everill v. Railway Co., 9 Utah, 341; Hall v. Railway Co., 13 Utah, 343.
If said instruction had been given and the jury had found that the plaintiff was negligent, they would have been forced to return a verdict for the defendant, although they may have been satisfied from the evidence that, notwithstanding plaintiff’s negligence, the defendant could, by the use of proper and ordinary care, have prevented the injury.
3. The third objection is that, “The court erred in charging the jury in the following words: 6 In other words, if you believe from the evidence that the defend
We do not think the objection to this instruction is tenable. ■
It is ordered that the judgment of the court below be affirmed, with costs.
