Burt v. The Utah Light & Power Co.

• Decision Date: 20 May 1903
• Docket Number: 1394
• Citation: 72 P. 497,26 Utah 157
• Parties: AGNES H. BURT, Respondent, v. THE UTAH LIGHT & POWER COMPANY, a Corporation, Appellant
• Court: Utah Supreme Court

72 P. 497

26 Utah 157

AGNES H. BURT, Respondent, v. THE UTAH LIGHT & POWER COMPANY, a Corporation, Appellant

No. 1394

Supreme Court of Utah

May 20, 1903

Appeal from the Second District Court, Weber County. --Hon. H. H Rolapp, Judge.

Action to recover damages for the death of plaintiff's son alleged to have been occasioned by the negligence of the defendant company and also on an assigned cause of action for injury at the same time to a span of horses, harness, sled hayrack and hay. From a judgment in favor of the plaintiff the defendant appealed.

AFFIRMED.

Le Grand Young, Esq., for appellant.

C. C. Richards, Esq., E. M. Allison, Jr., Esq., and A. E. Pratt, Esq., for respondent.

HART, District Judge. BASKIN, C. J., and BARTCH, J., concur.

OPINION

HART, District Judge.

STATEMENT OF FACTS.

This action was brought by plaintiff for the death of her son, aged about fifteen years, and also upon an assigned cause of action for injury at the same time to a span of horses, harness, sled, hayrack, and hay. The verdict was for $ 1,775 for the death of the boy, and $ 75 for injury to the personal property. After motion for a new trial made and overruled, defendant appeals to this court, assigning various errors; among the same being excessive damages, insufficiency of the evidence to justify the verdict, and errors of law occurring at the trial. The injury occurred near the mouth of Ogden Canon on the 8th of February, 1901, by the capsizing of a load of hay driven by one Jos. Bingham, and upon which plaintiff's son, Thomas Brinker, was riding by permission of the driver. The evidence is somewhat conflicting on some material points, but there is evidence in the record supporting the following facts: That defendant company has a waterpipe line or tunnel conduit, six feet in diameter, situated on the steep side hill, some 400 or 500 feet above the county highway at the place of the accident. About January 13, 1901, a break or rift in the conduit permitted about one-fourth of the water flowing in the pipe to escape and flow to the county road and river below. Subsequently part of this flow was checked, but at the time of the accident, and for several days prior thereto, "quite a stream" was still escaping, and part of this was flowing upon and across the highway at the place where the accident occurred. It was cold, freezing weather, and six or eight inches of ice formed upon the road, which was slightly sloping towards the river and quite narrow at this place. Under the direction of a county commissioner, a small ditch was cut in the ice across the road, and at right angles to it, and sand was placed on the lower or west bank of the so-called ditch, forming a bank to catch said water as it flowed down the road, and direct it into the river. For some distance above and east of this little ditch, gullies or ruts had been cut and worn in the ice by wagons and sleds. The depth of these ruts is variously estimated by the witnesses at from a few inches to a foot. The north rut is placed at from fifteen to twenty feet long, extending east from the little ditch or bank of sand, and the south rut, or wagon track nearest the river, being from three to eight feet long, and from two to three feet from the river. Water and slush were running down these ruts into the ditch and into the river. There is some conflict in the testimony whether the icy condition of the road extended from the south rut entirely to the north rut or track. South of the south rut the ice was formed slanting to the river. On the day in question said Bingham was driving a load of alfalfa in a basket rack upon a pair of bobsleds over said road, and west towards Ogden. Both Bingham and Brinker were riding at the time upon the upper side or north of the center of the load, which was loaded somewhat heavier on the left-hand or south side. Upon nearing the place in question, one of the horses shied at the water flowing down the mountain; and the driver stopped the team and made the north horse get in the north rut, and then proceeded very slowly. As the north front runner started to raise out of the gully or ditch the south front runner dropped into the gully or rut on the south, and the load capsized into the river, killing the boy, Brinker. There is a conflict in the evidence as to the position of the hind runners at the time the load tipped. The driver, a young man twenty-three years of age, testified that he drove so that the north runners were in the north rut or wagon track; but other witnesses, who examined the sleigh tracks shortly afterwards, say that the north hind runner was south of the north rut, and was sliding towards the river for a distance of about eight feet before tipping into the river. Appellant contends that the blowing of the wind against the wind against the hay was a contributing cause of the injury, but the evidence upon this point is so slight that it is not necessary to further consider the point.

HART District Judge (after stating the foregoing facts).--This being a law case, and there being competent evidence to sustain the verdict, this court will not examine the testimony to ascertain upon which side is the preponderance. Neither is the court authorized to review the evidence to determine whether, or not, the damages are excessive. This court has heretofore frequently held that under section 9, article 8, Constitution Utah the Supreme Court is not authorized to review the facts in a case at law, except so far as may be necessary to determine questions of law. Anderson v. Min. Co., 15 Utah 22, 49 P. 126; Nelson v. So. P. Co., 15 Utah 325, 49 P. 644; Mangum v. Bullion, etc., Min. Co., 15 Utah 534, 50 P. 834; Whittaker v....