160 P. 441 | Utah | 1916
This action was brought to recover damages for alleged negligence causing the death of plaintiff’s intestate. She had judgment against both defendants, from which both appeal.
In the complaint it is alleged:
1, 2, 3 ‘ ‘ That the defendant the American Express Company is a corporation doing business in the State*498 of Utah under and by virtue of the laws of said State and was at all times herein alleged. ’ ’
Each of the defendants, in separate verified answers, denied:
‘1 That the American Express Company is a corporation doing business in the State, of Utah, but alleges that it is an unincorporated stock association organized under and by virtue of the laws of the State of New York.”
Upon this, among other issues, the ease proceeded to trial and judgment. No proof whatever was made or offered that the express company was a corporation. Notwithstanding the defendants, timely and at their first appearance in the case, and seven months prior to the time of trial, specifically and under oath denied that the express company was a corporation and specifically averred that it was an unincorporated stock association, and at the close of the evidence the express company separately moving for a directed verdict in its favor upon the specific ground, among others, for want of proof to support the allegation that the express company was a corporation, the plaintiff, nevertheless, paid no attention to this issue and proceeded to judgment as though the allegation in the complaint of corporate existence had been admitted. The averment is an issuable averment and must be proved when properly raised by the pleadings. Sutherland’s Code Pleading, Section 551; 5 Standard Ency. Pro. 645; Martin v, Deetz, 102 Cal. 55, 36 Pac. 368, 41 Am. St. Rep. 151. It here was properly put in issue. C. L. 1907, Section 3000. To prevail the burden was on the plaintiff to prove the corporate existence. The distinction between a corporation and an unincorporated stock association organized under the laws of New York is shown by the following cases: Matter of Jones, 172 N. Y. 575, 65 N. E. 579, 60 L. R. A. 476; Hibbs v. Brown, 112 App. Div. 214, 98 N. Y. Supp. 353, 190 N. Y. 167, 82 N. E. 1108. The respondent says that because of C. L. 1907, Section 2927, and as amended by Laws of Utah, 1911, c. 58, she was not required to prove the averment, but was entitled to rely, as she did, upon the averment in the answer that the express company was an unincorporated stock company and to proceed to judgment accordingly. That section provides that
“In determining the amount to be awarded to the plaintiff, in case you find a verdict in her favor, you may also take into consideration the loss of comfort, society, and companionship of said deceased, if any, which the plaintiff, his widow and his children have sustained by reason of his death.”
Complaint is made of this. It is conceded that as an abstract proposition the charge is not a misstatement of the law.
It, however, is contended that it is here erroneous because it was not alleged in the complaint that the deceased left any
An ordinance was put in evidence, which provides that:
“Every person using any vehicle on any street in the city of Ogden shall operate, drive or ride such vehicle on the portion of the right of the center of the street, except where the right side of the street is in such condition as to be impassable. ’ ’
In the block where the accident occurred excavations had been made in the center of the street for double street car tracks which rendered the street impassable by team from one side to the other. On the left side were also mortar boxes in the street used in the construction of a building. The defendants, as they entered the block, drove the team along the left of the center of the street and where the deceased was at work near the mortar boxes. The defendants offered to show that because of the excavations in the center of the street they drove to the left to deliver a package, in a building in that block on that side and which could not have been carried from the right side across the excavation. The court did not permit the defendants to show that, on the ground that such matters were not alleged in the answer. We think
“When a standard of duty or care is fixed by law or ordinance, and such law or ordinance has reference to the safety of life, limb, or property, then, as a matter of necessity, a violation of such law or ordinance constitutes negligence.”
We applied that to depositing and maintaining dynamite in a city in violation of an ordinance (Smith v. Mining, etc. Co., 32 Utah 21, 88 Pac. 683), to the operation of a steam railway (Rogers v. Railroad, 32 Utah 376, 90 Pac. 1075, 125 Am. st. Rep. 876), and of a street railway (Jensen v. Utah Light & Ry. Co., 42 Utah 415, 132 Pac. 8.) These were all dangerous instrumentalities, the maintenance or operation of which involved safety of life, limb and property. But that doctrine has no application to one merely driving a team or other vehicle not itself a dangerous instrumentality on the wrong side of a street in violation of an ordinance. Whether to do so constitutes negligence is dependent upon the facts and circumstances of the case and, generally, is a question of fact and not of law. It, let it be conceded, ordinarily is evidence of negligence for the consideration of the jury, but cannot as such be declared by the court as here was done. And then the charge was here especially erroneous because of the excavations and torn-up condition of the street. It may be that in view of all the circumstances, due care, as matter of fact, required the defendants, as is contended by the respondent, to have driven around or down the block and then back on the side of the street where- the package was to be delivered ; but the court was not justified in saying that as matter of law. The determination of it was peculiarly within the province of the jury.
For these reasons the judgment is reversed and the case remanded for a new trial. Costs to the appellants.