Clark v. Los Angeles & Salt Lake R. Co.

• Decision Date: 13 December 1928
• Docket Number: 4726
• Parties: CLARK v. LOS ANGELES & SALT LAKE R. CO
• Court: Utah Supreme Court

275 P. 582

73 Utah 486

CLARK v. LOS ANGELES & SALT LAKE R. CO

No. 4726

Supreme Court of Utah

December 13, 1928

Appeal from District Court, Fourth District, Utah County; George Christensen, Presiding Judge.

Action by Joyce Isgren Clark, administratrix of the estate of John Clark, deceased, against the Los Angeles & Salt Lake Railroad Company. From a judgment for plaintiff, defendant appeals.

REVERSED AND REMANDED.

George H. Smith, J. V. Lyle, R. B. Porter, Dana T. Smith, and J. T Hammond, Jr., all of Salt Lake City, for appellant.

J. W Robinson and J. Robert Robinson, both of Provo, for respondent.

STRAUP J. THURMAN, C. J., and MATHISON, District Judge, GIDEON, J. concurring. HANSEN, J., being disqualified, did not participate. CHERRY, J., dissenting.

OPINION

STRAUP, J.

This action was brought by the plaintiff to recover damages for the death of her intestate alleged to have been caused through the negligence of the defendant in a collision of a train operated by the defendant and an automobile truck driven by the deceased at a public crossing. The case was here on a former appeal. On the former trial, at the conclusion of all the evidence adduced by both parties, the court directed a verdict in favor of the defendant on the ground of insufficiency of evidence to show negligence on the part of the defendant and on the ground of contributory negligence of the deceased. On appeal by the plaintiff, we reversed the judgment and remanded the case for a new trial. Clark et al. v. U. P. R. R. Co. (L. A. & S. L. R. R. Co.) (Utah)-- 257 P. 1050. A retrial of the case resulted in a verdict and judgment in favor of the plaintiff from which the defendant has prosecuted this appeal.

It again is urged that the evidence is insufficient to show negligence on the part of the defendant and that the evidence conclusively shows contributory negligence on the part of the deceased. The evidence on the two trials is substantially the same, the substance of which is set forth in our former opinion. It is unnecessary to here restate it. In no particular does the defendant point out wherein there is any substantial difference. Thus what we in our former opinion ruled as to the sufficiency and character of the evidence to require a submission of the case to the jury is to be regarded the law of the case. No error, therefore, was committed in letting the case to the jury.

The defendant, however, further contends that the court, on the defendant's motion for a new trial on grounds of insufficiency of the evidence and of contributory negligence, erred in overruling the motion. It cannot be said that such a question was necessarily adjudicated by the former opinion. While on a given state of facts and circumstances acourt may not be justified in withholding a case from the jury, yet, after it is submitted to them and a verdict rendered, if the court on a motion for a new trial is of the opinion that the jury in rendering the verdict disregarded the manifest weight of the evidence, or misconceived it, or disobeyed the charge, or were influenced through passion or prejudice, the court would not only be authorized, but it would be its duty, to grant a new trial. But in such case we ordinarily do not interfere with or disturb the court's ruling in either granting or refusing a new trial, except for an abuse of discretion. Thus the defendant is not, by the former opinion, precluded from presenting such a question on this appeal, though as to the facts and circumstances there is no substantial difference in the two trials. We, however, on a review of the record, are of the opinion that no such an abuse has been shown, and that thus the overruling of the defendant's motion for a new trial on the stated grounds was authorized and justified.

Over the objection of the defendant, the plaintiff, in the course of the trial, was permitted to show the condition of the minor children of the deceased as to health, and to show that one of them, less than five years of age, suffered from or was afflicted with a partial ptosis of the eyelid, which, when the child became 5 years of age, required "an expensive operation." Further than that no testimony was given as to the nature of the operation nor as to the expense or cost of it. No error was committed in the ruling. Evans et al. v. O. S. L. R. R. Co., 37 Utah 431, 108 P. 638, Ann. Cas. 1912C, 259.

In the course of the trial motions were made by the defendant to strike the testimony of each of the two school-girls and each of the two teamsters hauling beet pulp, witnesses who testified on the former and on this trial for the plaintiff. The testimony of these witnesses is set forth in our former opinion. It is not claimed that the testimony of any of such witnesses was different on this than on the former trial. It is urged the testimony ought to have been stricken, for the reason that it was not sufficiently shown that any of such witnesses was sufficiently near the place of the accident, or in such proximity to the train as it approached the crossing or otherwise in a situation or position to hear signals, had any been given of the train's approach, and that hence the testimony of such witnesses that they did not hear any signals given of either ringing the bell or of sounding the whistle of the engine, ought to have been stricken. This also presents a some-what different question from that presented on the former appeal. On the former trial, the testimony of all of these witnesses was received over the objections of the defendant. On the former appeal, there being no cross-assignments of error, the plaintiff, in having considered questions of evidence to show negligence on the part of the defendant and of contributory negligence on the part of the defendant and of such testimony. It, however, on the former appeal, was urged by the defendant that the testimony of such witnesses, for the reasons stated, had no probative value, and at most was mere negative testimony, and not of such character as to raise any substantial conflict with the positive evidence of the defendant that signals were given as the train approached, and that therefore the court was justified in directing a verdict in favor of the defendant. We held that contention against the defendant. We then were called upon to decide the question of sufficiency of such evidence, though negative in character, to raise a conflict with the positive evidence adduced by the defendant. We decided that against the defendant. We now are called upon to determine the competency of such testimony and the ruling of the court in refusing to strike it on the ground and for the reasons urged by the defendant. In our former opinion, we pointed out that, according to the testimony of such witnesses, they listened for signals of the train, gave reasons why they were listening and paying attention to ascertain the train's approach, that they were in position to hear, and that they could have heard the signals had they been given, and that they heard no signals. Their testimony on the trial is to the same effect. We thus think the testimony was competent and properly received, and the motion to strike properly overruled. True, the defendant, on this as on the former trial, gave evidence tending to show, or rather evidence to show, circumstances and conditions from which inferences could be deduced that all of such witnesses as the train approached the crossing were much farther from the crossing than as testified to by them, and were so situated that in all probability they would not or could not have heard the signals had they been given. But as to that we said on the former appeal, and we again say, the evidence was in conflict, and therefore whether these witnesses were or were not in a position to hear signals had they been given, and as to whether they were or were not paying sufficient attention to the train's approach that they could or would have heard signals had they been given, were questions for the jury. The reasons for such a conclusion reached by us are set forth and discussed in our former opinion. We are content with what we there said on the subject.

Complaint also is made of the court overruling the defendant's motion to strike the testimony of an engineer called by the plaintiff as to the speed of the defendant's train traveling at 30 or 32 miles an hour, at 60 miles, and at other various speeds, could have been stopped. The testimony in such respect also is referred to in our former opinion. Again no claim is made that the evidence in such particular was different on the former trial than on this trial. It now is urged by the defendant, as it was urged by it on the former trial, that the competency and qualifications of the engineer were not sufficiently shown to express an opinion as to the matters indicated, and that evidence was given to show his incompetency when in prior service of several railroad companies and discharged by them. All such circumstances and conditions were gone into on the former trial. Not anything relating to the incompetency or disqualifications of the witness was developed on this trial that was not developed on the former trial. We again have here presented a somewhat different question from that presented on the former trial. On plaintiff's appeal, and in considering the question of sufficiency of evidence to show negligence on the part of the defendant, she again had the benefit of this testimony. It then was urged by the defendant that, because the witness had not properly qualified, his testimony was of no probative value, and therefore the court, in passing on the motion for a directed verdict, may have been justified in disregarding it or in attaching no importance to it. We held against the defendant as to...