Bills v. Salt Lake City

• Decision Date: 03 June 1910
• Docket Number: 2108
• Court: Utah Supreme Court
• Parties: BILLS v. SALT LAKE CITY

109 P. 745

37 Utah 507

BILLS v. SALT LAKE CITY

No. 2108

Supreme Court of Utah

June 3, 1910

Appeal from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by William L. Bills against Salt Lake City.

Judgment for defendant. Plaintiff appeals.

REVERSED.

E. A Walton for appellant.

H. J Dininny and P. J. Daly for respondent.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

This action was instituted by the appellant to recover damages which it is alleged he sustained by being thrown from his bicycle while riding thereon upon one of the streets of respondent city, which street, it is alleged, through the negligence of respondent, was in an unsafe condition for travel by reason of an excavation which was negligently permitted to be and remain therein. The respondent answered by denying all acts of negligence, and set up affirmatively that appellant was guilty of contributory negligence. The case was submitted to a jury upon the acts of negligence alleged in the complaint and upon the plea of contributory negligence. The jury found the issues in favor of respondent, and returned a verdict of no cause of action. The court entered judgment on the verdict, and the appellant brings the record to this court for review on appeal.

The assignments of error all relate to instructions given by the court.

Counsel for respondent insist that the errors assigned cannot be reviewed by us because the bill of exceptions does not contain all the evidence, but merely recites or states the effect of the evidence which was adduced by the parties in support of the respective issues contained in the complaint and answer. We can see no good reason, and none is suggested by counsel, why the bill of exceptions as proposed and allowed in this case is not sufficient, not only to authorize, but also to make it possible and convenient for, us to pass upon the exceptions to the instructions. All that a party ordinarily is required to preserve in a bill of exceptions is sufficient of the evidence to illustrate the exception and to enable this court to intelligently pass upon the question of law raised thereby. In the case at bar the trial court submitted the case to the jury upon all the issues presented by the pleadings, and, in the bill of exceptions, the court certifies (and this is not disputed) that there was evidence introduced which tended to establish all of the issues. If this be true, and we must assume it to be so, the only question is whether in view of the proof the instructions excepted to state correct propositions of law. These questions may be determined as the bill of exceptions is prepared quite as well as if every word of the evidence were certified up. The objection of counsel for respondent therefore cannot prevail.

Nor is their contention tenable that the exceptions to the instructions are not properly before us, because the court stenographer has not certified to the exceptions. The exceptions are contained in the bill of exceptions, which is certified to as correct by the trial court. This is sufficient without the certificate of the stenographer who noted the exceptions when they were made, since those exceptions by the statute are required to be taken in the presence of the judge. The first instruction excepted to reads as follows: "The burden of proving negligence rests upon the party alleging it, and, when a person charges negligence on the part of another as a cause of action, he must prove the negligence alleged in the complaint by a preponderance of the evidence; and in this case if you find that the weight of the evidence is in favor of the defendant, or that it is equally balanced then the plaintiff cannot recover, and you should find the issues for the defendant." (Italics ours.) It is contended that a requested instruction in which the italicized portion of the foregoing one was contained was condemned by this court in the case of Hickey v. Railroad, 29 Utah 392, 82 P. 29. In that case an instruction quite similar in terms to the foregoing was passed on. From what was said, however, by Mr. Justice Straup, commencing on page 413 of 29 Utah 392, 82 P. 29, it is clear that the conclusion reached with respect to the instruction was based on the fact that the trial court in its own instructions had affirmatively charged the jury with regard to the proposition covered by the request, which, in effect, was no more than a negative statement of what had already been sufficiently covered by the court. It was accordingly held that the court committed no error in refusing the request. It is true that on page 414 of 29 Utah 392, 82 P. 29, it is said that a portion at least of the requested instruction did not correctly state the law. This statement was based upon the fact that the request was open to the construction that the plaintiff could not recover in the case if the evidence for and against the issue of his contributory negligence were "equally balanced." If the instruction in question were likewise open to such a construction, it, too, might be held erroneous. From a careful reading of the instruction given in this case, it will be seen that the court told the jury that the plaintiff "must prove the negligence alleged in the complaint by a preponderance of the evidence." This statement is immediately followed by the italicized and criticized portion, which refers to the weight of the evidence, and that the plaintiff cannot recover if the evidence is equally balanced. This refers to the quantum of proof necessary to sustain the allegations of negligence contained in the complaint, and nothing else. True, the trial court, in the last line of the instructions, speaks of "issues" in the plural; but from what the court had said before, and in view of the other instructions, the instruction in question, when fairly considered, is not open to the construction that the plaintiff must fail if the evidence with respect to the issue of contributory negligence is equally balanced. While the...