Grow v. Oregon Short Line R. Co.

• Decision Date: 17 July 1915
• Docket Number: 2722
• Citation: 150 P. 970,47 Utah 26
• Court: Utah Supreme Court
• Parties: GROW v. OREGON SHORT LINE R. CO

150 P. 970

47 Utah 26

GROW v. OREGON SHORT LINE R. CO

No. 2722

Supreme Court of Utah

July 17, 1915

Application for Rehearing, August 11, 1915.

For former appeal sec 44 Utah 160, 138 P. 398.

Appeal from District Court, Second District; Hon. J. D. Call Presiding Judge.

Action by Cecillia Grow, as administratrix of the estate of Cyrus L Grow, deceased, against the Oregon Short Line Railroad Company.

Judgment for plaintiff. Defendant appeals.

MODIFIED and affirmed upon denial of rehearing.

P. L. Williams, George Y. Smith and Frank K. Nebeker, appellant.

J. G. Willis, for respondent.

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

OPINION

STRAUP, C. J.

The case was here before on plaintiff's appeal from a judgment resulting from a directed verdict in the defendant's favor. 44 Utah 160, 138 P. 398. It then was remanded for a new trial. The retrial resulted in a verdict and judgment for the plaintiff. The defendants appeals. It again presents a question presented, directly involved, and decided on the former appeal, the question as to whether the deceased, at the time of the injury from which the death resulted, was employed or engaged in interstate commerce. The facts of both trials are the same. They are set forth in the former opinion. What, upon those facts, we then decided as to that question is the law of the case, binding alike upon us, the trial court, and the parties. We then held the deceased was employed in interstate commerce. Since the facts are the same, that holding, until reversed by the Supreme Court of the United States, is, as to this jurisdiction, the end of that question. Teakle v. San Pedro, etc., R. R., 36 Utah 29, 102 P. 635; 3 Words and Phrases (2d Series) p. 37; 11 Cyc. 757.

On the former appeal we held the court erred in taking the case from the jury on the ground, among others, of assumption of risk. On the retrial the defendant tendered requests to go to the jury on the theory of whether the deceased, as matter of fact, had assumed the risk. The court refused the requests, holding that there was no evidence to support such a theory. From our former holding that the court was not justified in withholding the case from the jury on that ground it does not necessarily follow that the parties were not entitled to go to the jury on such question as one of fact. We, however, based our ruling on the ground that, upon the record, there was no element of assumption of risk involved, and that what the trial court regarded as involving an assumption of risk but involved questions of contributory negligence. For that reason do we think the question of assumption of risk was also put at rest. But should that not be true, we now, on a review of the record, hold there is no evidence on which to submit any such question to the jury; and for that reason also were the requests properly refused.

The only question of merit involved on this appeal relates to the court's charge on the question of damages. As to that the court gave this:

"You are instructed that the financial benefits which might reasonably be expected from the said Cyrus L. Grow, as the husband and father, by his widow and children, in a pecuniary way, is the measure of damages in this action. Therefore, if you should believe from the evidence that the defendant was guilty of the wrongful acts and neglect charged in the complaint, and the same resulted in the death of the said Cyrus L. Grow, then the plaintiff is entitled to recover in this action, for the benefit of said widow and children, such damages as the jury may deem, from the evidence and proofs, a fair and just compensation for the loss of financial benefits they might each reasonably expect to have received from the said Cyrus L. Grow during his lifetime, if any, not exceeding in the aggregate the sum of $ 25,000. You are instructed that you should not assess the damages, if any you should find, in a single sum, but you should assess such damages as you believe the said widow has suffered by reason of the death of the said Cyrus L. Grow; and then you should likewise assess for each child such damages, if any, as you believe said child has suffered by reason of the death of said father, and from each of said sums deduct such sums, if any, in your opinion ought to be deducted therefrom by reason of the contributory negligence of said Cyrus L. Grow, in case you find he was guilty of any such contributory negligence. The loss to each of said persons, if any they have sustained, is to date from the day said injuries were inflicted which resulted in the death of the said Cyrus L. Grow."

The jury rendered a verdict, "assessing the damages suffered" by the widow, at $ 2,000; Cyrus E Grow, $ 1,509.75; Esther S. Grow, $ 1,372.50; John W. Grow, $ 2,058.75; Vera C. Grow, $ 2,058.75--a total of $ 8,999.75. The complaint goes to the last portion of the charge that the loss is to date from the day the injuries were inflicted, and which resulted in Grow's death. The injuries were inflicted on the 5th of January, 1910. The deceased died that, or the next day. The verdict was rendered in June, 1914. The time between the death and the rendition of the verdict is about four and a half years. The point made is that by that instruction the jury were directed to allow interest for that period, and that interest in actions of this character is not recoverable. Counsel for respondent take two positions: (1) That interest is recoverable; and (2) that the charge is not a direction...