Loofborrow v. Utah Light & Ry. Co.

• Decision Date: 02 January 1906
• Docket Number: 1749
• Citation: 31 Utah 355,88 P. 19
• Parties: LOOFBORROW v. UTAH LIGHT & RY. CO
• Court: Utah Supreme Court

88 P. 19

31 Utah 355

LOOFBORROW v. UTAH LIGHT & RY. CO

No. 1749

Supreme Court of Utah

January 2, 1906

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by Harlan Loofborrow against Utah Light & Railway Company. From a judgment for plaintiff, defendant appeals.

REVERSED, AND NEW TRIAL GRANTED.

Young &amp Moyle for appellant.

APPELLANT'S POINTS.

Every instruction must have evidence to support it. (Coates v Railway, 24 Utah 304; Ohlenkamp v. Railway, 24 Utah 232; Konold v. Railway, 21 Utah 389; Snell v Crowe, 3 Utah 26.)

A part of this instruction reads: "In this case it was not negligence on the part of the plaintiff to ride along or near the track of the defendant railway. This finding or assumption made by the court, we maintain is upon a very material, disputed fact which should have been left to the jury. (Blashfield, Instruction to Juries, sec. 29; Railway v. Casady, 40 S.W. 198; Cahoon v. Marshall, 25 Cal. 197.) An instruction which assumes a disputed fact against appellant is prejudicial and error, notwithstanding the fact that another portion of the instruction imply that they should be the judge of a fact which and the credibility of the witnesses. (Marti v. Smelting Co., 23 Utah 52; People v. Glassman, 12 Utah 238; Fenstermaker v. Pub. Co., 12 Utah 439.) If inconsistent instructions are given it is error: (People v. Berlin, 10 Utah 40; People v. Hancock, 7 Utah 180; Marti v. Smelting Co., 23 Utah 52.)

W. R. Hutchinson and A. R. Barnes for respondent.

RESPONDENT'S POINTS.

Where a witness is contradicted the party calling him has the obvious right to introduce competent testimony corroborating him, and no exception lies to the hearing of such testimony. (1 Thompson on Trials, secs. 541, 544; Wade v. Thayer, 40 Cal. 578; 1 Elliott on Evidence, sec. 189; Railway v. Hart, 28 N.E. 218; Stewart v. Anderson, 82 N.W. 771.) Further appellant is estopped from complaining of the giving of this portion of the instruction, having requested the court to instruct on the same point. (1 Blashfield on Instructions to Juries, sec. 91, p. 211; Spears v. Mt. Ayr, 66 Iowa 721.) To the point that the court in this instruction correctly stated the law as to the relative rights of the plaintiff and defendant company, in the use of this highway, we cite: Hall v. Railway, 13 Utah 243; Thompson v. Transit Co., 16 Utah 281; Mahoney v. Railway [Cal.], 42 P. 968; Railway v. Schmidt [Ind.], 71 N.E. 665; Scamel v. Railway [Mass.], 57 N.E. 341.

When the charge of the trial court as a whole appears to state the law fairly and correctly there is no reversible error, even though one portion of the charge considered alone is faulty. (Major v. Railway, 21 Utah 141; Olsen v. Railroad, 24 Utah 460; Holland v. Railway [Utah], 72 P. 940; Hamer v. Bank, 9 Utah 220; State v. McCoy, 15 Utah 141; Anderson v. Daly Mining Co., 16 Utah 38.)

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

OPINION

STRAUP, J.

This is an action for personal injury. The plaintiff had judgment, and the defendant appeals. The evidence on the part of the plaintiff tended to show: That he was driving a horse and cart along one of the streets of Salt Lake City. The street was muddy. The best part of it was near the street car track of the defendant. The plaintiff was driving north. His horse was somewhat unruly and unmanageable, and wanted to run, but was controlled by plaintiff. The horse, however, went up the street in a zigzag manner, sometimes near the track, and at other times on the track. Whilst the horse was jumping and prancing near the track, or partially on the track, and whilst plaintiff was endeavoring to get him from it, a street car operated from the south by the defendant was run, without warning and at a high rate of speed, against and upon plaintiff and injured him. The circumstances were such as defendant's agents in charge of the car saw, or, in the exercise of ordinary care, could have seen, plaintiff's perilous situation in time to have stopped the car and avoided the collision. On the part of the defendant the evidence tended to show that plaintiff was driving his horse to one side of the street and not near the track; that the horse was bucking and kicking, and as the car, at a low speed and with warning, approached, the horse kicked plaintiff in the side partially disabling him; that the horse then suddenly ran across the street in front of the car, and that the collision resulted therefrom before the car could be stopped. Error is predicated on the following charge of the court: "A street railway company, from necessity growing out of the nature of its business, has the right of way--that is, the right to proceed first in case of meeting a person or vehicle--but, except in that regard, so far as material to any issue in this case, it has no rights on the public streets of a city except such as are given to the public at large. And, in case of meeting a person or vehicle, each party, in order to avoid accident, must exercise ordinary care and such reasonable prudence as the surrounding circumstances require, and in this case it was not negligence on the part of the plaintiff to drive along or near the track of the defendant's railway; further, he might even drive upon the track of defendant's railway if he did so in the exercise of due care to avoid accident at a time when there was no car near enough to cause a reasonable person to apprehend danger, and providing also that he did not drive upon the track at such a time and in such a way as unreasonably to impede or hinder the operation of any of the defendant's cars, and, if you find that the plaintiff did drive along, near, or upon the track under such circumstances, he had a right to presume that the motorman of a car coming upon him from the rear would give him timely warning of the approach of the car."

The complaint made of the charge is that, by the statement "in this case it was not negligence on the part of the plaintiff to drive along or near the track of the defendant's railway," the court invaded the province of the jury. The respondent invokes the rule, which is well established and fully recognized by this court, that "instructions should be considered with reference to each other, and as an entirety, and not separately or in disconnected parts, and, if the instructions, as a whole correctly and fairly present the law...