Gribble v. Cowley

• Decision Date: 09 April 1941
• Docket Number: 6224
• Court: Utah Supreme Court
• Parties: GRIBBLE v. COWLEY

112 P.2d 147

100 Utah 217

GRIBBLE v. COWLEY

No. 6224

Supreme Court of Utah

April 9, 1941

Appeal from District Court, Seventh District, Sanpete County; J. A Hougaard, Judge.

Action by H. M. Gribble against Mrs. Emma Cowley to recover damages for death of plaintiff's son from injuries sustained when struck by automobile. From a judgment of no cause of action plaintiff appeals.

Affirmed.

W. D Beatie, of Salt Lake City, for appellant.

J. Vernon Erickson, of Richfield, for respondent.

MOFFAT, Chief Justice. WOLFE, LARSON, McDONOUGH and PRATT, JJ., concur.

OPINION

MOFFAT, Chief Justice.

This is an appeal from a judgment of no cause of action based upon a jury verdict.

While the facts are not involved in the case, in order to understand what the issues are, it is necessary to state at least substantively a narrative of the controversy.

William Hale Gribble was riding his bicycle on his way home from school at Gunnison, Sanpete County, Utah. The sidewalk over the bridge is raised some six inches above the regular roadway and the pathway approach to the bridge, designated the "San Pitch Bridge." The Gribble lad, instead of lifting his bicycle up the raise in the sidewalk, went into the highway in crossing the bridge. A collision occurred upon the bridge between the automobile driven by the defendant, respondent in this appeal, and the son of the plaintiff, appellant on appeal. The death of the lad riding the bicycle resulted two days later from the injuries received. The boy was fourteen years of age. H. M. Gribble, father of William Hale Gribble, brough suit for damages charging negligence on the part of the driver of the automobile, Mrs. Emma Cowley.

Following the return of the verdict of the jury of "no cause of action" and the entry of judgment, the plaintiff filed a motion for a new trial, basing the motion upon the following grounds: 1. Misconduct of the jury; 2. Insufficiency of the evidence to justify the verdict; and 3. The verdict is against the law.

The motion for a new trial was denied.

The appeal was taken upon the following assignments of error:

"1. The evidence is insufficient to justify the verdict in the following particulars:

"That there was no issue of contributory negligence in this trial and the jury was instructed that the sole issue in the cause was whether or not the defendant was negligent as alleged in plaintiff's complaint; and that there was no evidence of negligence on the part of William Hale Gribble, the decedent, which said negligence might be imputed to his father, the plaintiff in this action.

"2. Misconduct of the jury in the following particulars:

"(a) Considering in the jury room and discussing the negligence of the defendant and the contributory negligence of the plaintiff's deceased son, when the court had given instruction No. 14, which instruction stated that the sole issue in the cause was the negligence of the defendant.

"(b) That the jury in their jury room discussion, stated that the defendant was guilty of negligence in causing the death of the decedent, and by deciding that the defendant, Mrs. Cowley, was negligent, it then became the duty for the jury to determine just one matter to wit: what amount of damages was sustained by the plaintiff and render a verdict in that amount.

"(c) That the jury considered facts outside of the scope of the pleadings, and trial, namely, contributory negligence of the decedent, when the sole issue in the case was, the negligence only of the defendant.

"(d) That the jury sent word to the Judge in the cause that they wished further instructions in the case, and upon being informed that the jury was to read the instructions and decide the case accordingly, that the jury voted on the verdict and three jurors changed their verdict so that the vote was 8 to nothing for 'No Cause of Action,' and that the last vote of the jurors was influenced by the information sent the jury by the Judge of the cause."

There was no issue of contributory negligence either pleaded or submitted to the jury, nor legal issue made as to whether or not William Hale Gribble was negligent. The court's instructions limited the issues to negligence of the defendant and the determination of the amount of damages--if the jury found the defendant chargeable with negligence.

Plaintiff maintains the law to be that "The jury is bound on questions of law, to yield full obedience to the instructions of the court, and this applies as well to that part of the charge...