Lewis v. Silver King Mining Co.

• Decision Date: 05 May 1900
• Court: Utah Supreme Court
• Parties: MARY ANN LEWIS, SOLE SURVIVING HEIR AT LAW OF JOHN A. LEWIS, DECEASED, APPELLANT v. SILVER KING MINING COMPANY, A CORPORATION, RESPONDENT

61 P. 860

22 Utah 51

MARY ANN LEWIS, SOLE SURVIVING HEIR AT LAW OF JOHN A. LEWIS, DECEASED, APPELLANT v. SILVER KING MINING COMPANY, A CORPORATION, RESPONDENT

Supreme Court of Utah

May 5, 1900

Appeal from the Third District Court, Summit County. Hon. H. H Rolapp, Judge.

Action for damages for the death of plaintiff's son alleged to have been caused by the negligence of defendant company. From a judgment of non-suit, plaintiff appealed.

Reversed and Remanded.

Messrs Richards & Allison, for appellant.

Messrs Dickson, Ellis & Ellis, for respondents.

BASKIN, J. BARCH, C. J. and MINER, J. concur.

OPINION

BASKIN, J.

This is an action in which the plaintiff seeks to recover damages for the death of her son, alleged to have been caused by the negligence of the defendant.

The complaint in substance alleges that while John A. Lewis, the son of plaintiff was, on the 18th of July, 1898, engaged as a servant of the defendant, in making an excavation under the direction of defendant for a mill-site in Woodside Canyon, in Summit County, Utah, the defendant carelessly and negligently, and without knowledge or fault of the deceased, caused large rocks to be hauled and unloaded at a point on a steep hillside, above the place where the deceased was so engaged, and carelessly and negligently let one of the rocks roll down the hillside and strike and injure the deceased, thereby causing his death.

The answer denied the alleged negligence. At the close of the plaintiff's testimony, the defendant moved for a non-suit "on the ground of a fatal variance between the pleadings and the proof; and also upon the ground that the evidence fails to show any negligence or carelessness whatever on the part of the defendant company."

The party moving for a non-suit should, in the motion, lay his finger on the exact point of his objection. The motion does not state in what particulars there was a variance between the pleadings and the evidence; nor on what particular points the evidence failed to show negligence on the part of the defendant. If this had been done it may be that the trial court would have permitted the pleadings to be amended so as to conform to the evidence, and have permitted the plaintiff to supply the defects in the evidence which the motion pointed out, and the plaintiff might have been able to have done so.

In the cases of Frank v. Bullion Beck & Champion Min. Co., 19 Utah 35, 56 P. 419 and McIntyre v. Ajax Min. Co., 20 Utah 323, 60 P. 552, we held that a party moving for a non-suit ought to be required to specifically state the grounds upon which he bases his motion, and thereby call the court's attention, and that of the opposite party, to the point on which he relies. This rule is well established by the decisions of the courts. Kiler v. Kimbal, et al., 10 Cal. 267; Sanchez v. Neary, 41 Cal. 485; People v. Banvard, 27 Cal. 470; Coffey v. Greenfield, 62 Cal. 602; Miller v. Lucas, 80 Cal. 257, 22 P. 195; Belcher v. Murphy, 81 Cal. 39, 22 P. 264; Shain v. Forbes, 82 Cal. 577, 23 P. 198; Jacobs Sultana Co. v. Union Mine Co., 17 Mont. 61, 42 P. 109.

There are numerous other authorities to the same effect.

In the last case cited the grounds of the motion for the non-suit were that the plaintiff had failed to prove the allegations of the complaint, and had failed to prove any consideration or promise, or that any promise had been made by defendant, as alleged in the complaint.

In the case of Jackson, Adm'r v. Traction Co. 59 N.J.L. 25, 35 A. 754, the ground of the motion was, that the plaintiff had not established the liability of the defendant. The court, in the opinion said: ...