9 Utah 426 | Utah | 1894
This action is brought to recover damages claimed to have been sustained by Lavina M. Thomas and occasioned by a fall from a bridge over a streem within the corporate limits of the defendant.
The plaintiff was driving a horse attached to a carriage across this bridge, when the horse became frightened at a hole in the bridge, which had been partly covered by a plank, and backed off the bridge, causing the plaintiff to fall about ten feet into the water below.
Plaintiff claims damages on account of the unsafe and ■ negligent condition in which the bridge was left. The floor of the bridge had become worn out in places and had been repaired before the accident. The hole in the bridge was estimated by several witnesses to be from three to eleven inches wide and two to three feet in length. This hole had been repaired by defendant by placing plank over it in such a manner as tc leave a crack on either side, estimated by various witnesses at from one to three inches in width, through which the-water could be seen below. For about four feet at each end of the bridge where the buggy went off, the approaches to it were not protected by any railing or guard rail to prevent vehicles from going over. The horse driven by plaintiff was gentle, and it appears plaintiff was accustomed to driving horses.
The testimony shows that plaintiff received injuries. Within a short time after the accident she was prematurely delivered of a dead child, and that some three or four months thereafter she suffered a miscarriage, all of which, it is claimed, was occasioned by the injury received at the time. It also appears that had a railing been placed at the approach to the bridge the accident might have been avoided. The testimony was conflicting. IJpon the trial the jury rendered a verdict in favor of the plaintiff for $2,300. Upon the motion for new trial, the court struck out the sum of $1,000, leaving a judgment for the plaintiff of $1,300. .
The appellant contends that there is no evidence in the record'showing, negligence on the part of the city.
Upon an examination of the record and of the authorities bearing upon this question we are satisfied that there was sufficient evidence before the jury upon the question of negligence by the city in not providing a suitable railing to the approach of the bridge, and upon the question • of negligence and want of proper care on the part of the city in failing to make a reasonable, proper repair of the defect in the floor of the bridge. These matters, were within the- special province of the jury to pass upon under the evidence given, and their verdict should not be disturbed. Houfe v. Town of Folton, (Wis.) 9 Am. Rep. 568; Hay v. Philadelphia, (Penn.) 22 Am. Rep. 733; Kenny v. Mayor, 73 N. Y. 365; Ring v. City of Cohoes, 77 N. Y. 83; City
It is also contended that the court erred in allowing witness Storrs to testifj^ that he had seen two or three horses shy at this broken place in the bridge in question.
We think this testimony was properly admitted for the piirpose of showing notice to the city, and also as tending to show that this covering and crack in the bridge was an object likely to frighten horses. The authorities seem to be practically uniform on this subject. Darking v. Westmorland, 13 Am. Rep. 55; Hall v. Portland, 92 Am. Dec. 604; City of Chicago v. Powers, 42 Ill. 169; City of Delphi v. Lovery, (Ind.) 39 Am. Rep. 98; City of Augusta v. Hafeis, (Ga.) 34 Am. Rep. 95; Pomfrey v. Saratoga, 104 N. Y. 459; Dist. of Columbia v. Arms, 107 U. S. 519.
Exception is taken to the refusal of the court to give defendant’s first and third requests.
In the first request the court was asked to direct a verdict for the defendant. This as we have seen was properly refused.
In the third request the court was asked to charge the jury in substance that if the hole in the bridge was repaired in a reasonable and ordinary manner, so as to cause no obstruction to the reasonablé and ordinary use of the bridge, and that the horse shied at the board used in its repair without sufficient cause or excuse, and backed off the bridge, then the defendant would not be liable. The court did not give its charge in the language used, but told the jury in substance that in determining the matter they should consider the whole condition of the bridge; that the city was liable if it did not use reasonable care in making its roadways and approaches to the bridge, and the bridge itself, reasonably sáfe; that ordinary negligence was the want of reasonable care; that if the city was negligent
We can see no objection to the third request as offered except that it was not broad enough to cover other features of the alleged negligence presented by the testimony. The whole charge taken together fairly presented the law of the case to the jury.
Many other errors were assigned in the record, but we have examined all that were discussed in the appellant’s brief and not waived at the hearing. Upon the whole record we find no reversible error. The judgment of the district court is affirmed with costs.
