Loofbourow v. Utah Light & Ry. Co
| Decision Date | 04 April 1908 |
| Docket Number | 1912 |
| Citation | 94 P. 981,33 Utah 480 |
| Parties | LOOFBOUROW v. UTAH LIGHT & RY. CO |
| Court | Utah Supreme Court |
APPEAL from District Court, Third District; M. L. Ritchie, Judge.
Action by Harlan Loofbourow against the Utah Light & Railway Company. Judgment for plaintiff, and defendant appeals.
For prior report, see 31 Utah 355, 88 P. 19.
AFFIRMED.
P. L Williams, Geo. H. Smith, and Jno. G. Willis for appellant.
W. R Hutchinson and A. R. Barnes for respondent.
RESPONDENT'S POINTS.
"If the petition claims damages for loss of time because of permanent disability, the plaintiff may prove his skill as a mechanic, the employment he was engaged in, and the wages received, although such facts are not alleged."
This is an action for damages for alleged personal injuries sustained by respondent and for damages to his horse and cart caused by a collision with one of respondent's street cars. The case is here on second appeal. The first appeal is reported in 31 Utah 355, 88 P. 19, where the facts are stated. The evidence on the second trial was practically the same as on the first, and we refer to the statement of the case as made by Mr. Justice Straup for further particulars. On the second trial the jury again found in favor of respondent. Upon the verdict judgment was entered, from which this appeal is prosecuted.
The appellant asserts that the court erred in admitting over its objections certain evidence concerning respondent's vocation, and what he could earn, and what his earnings had been prior to the injuries complained of. This alleged error is based upon the ground that such evidence was not relevant under the facts stated in the complaint. The evidence was admitted under the following allegation: That by reason of the acts of negligence set out in the complaint "several of the plaintiff's ribs, to wit, six, were crushed and broken, and plaintiff was otherwise greatly injured and bruised about the loins, back, limbs, spine, and body, and was thereby caused great physical pain and anguish of mind, and thereby made sick, sore, lame, and disordered from hence hitherto; that by reason of said injuries so received as aforesaid plaintiff has been ever since said date last mentioned, and now is, unable to do any manual labor whatsoever, and plaintiff upon information and belief alleges that said injuries are permanent and lasting; and that he will be prevented from actively pursuing his business during the term of his natural life." Here is a complete statement of respondent's injuries, their character and extent, and that by reason thereof he was and will continue to be prevented from pursuing his business or vocation. This was sufficient to apprise appellant that respondent in all probability would offer evidence with regard to his vocation, earnings, and loss thereof. If these allegations were deemed not sufficiently specific in respect to respondent's calling or vocation, or if appellant was unable to determine from them the vocation or calling of respondent, it should have challenged the statements in that regard by special demurrer upon the ground of ambiguity or uncertainty. Not having done so, it cannot now be heard to complain of the admission of evidence with regard to respondent's vocation as an ordinary engineer and his loss of earnings. The question involved here is quite unlike the one involved in the case of Pugmire v. O. S. L., 92 P. 762, recently decided by this court. The question here presented has frequently been considered and passed upon by the courts, and, while there is some diversity of opinion, the overwhelming weight of authority is to the effect that under allegations even less specific than those contained in this complaint the evidence admitted in this case is clearly relevant and proper. Among very numerous authorities that might be cited upon this point we refer to the following: Lesser v. St. L. & Sub. Ry. Co., 85 Mo.App. 326; So. P. Ry. Co. v. Hall, 100 F. 760, 41 C. C. A. 50, 54; Columbia, etc., Ry. Co. v. Hawthorne, 3 Wash. Terr. 353, 19 P. 25; Treadwell v. Whittier, 80 Cal. 574, 22 P. 266, 5 L. R. A. 498, 13 Am. St. Rep. 175; Luck v. City of Ripon, 52 Wis. 196, 8 N.W. 815; Sutherland on Damages (3d Ed.), sections 1247, 1248.
It is further contended that the court erred in admitting evidence over the objection of appellant with regard to what certain persons said to respondent concerning his ability to perform the duties of an engineer when he sought employment from them after the injuries. This evidence was all stricken from the record by the court during the trial, and before respondent rested his case, on motion of his counsel. And the court, in an instruction, told the jury they must not consider any evidence that was stricken out. It is now urged that this did not cure the error of admitting the improper evidence. That the declarations of the persons referred to and what was said by respondent at the time was improper evidence there can be little, if any, room for doubt. But we think the error in admitting the evidence, in view of all the circumstances disclosed by this record, was completely cured by striking it out from the record and withdrawing it from the jury. Such is the general holding of the courts upon the question under consideration, which is well illustrated by the...
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...the fairness of the [Marital Agreements], this instruction was not sufficient to cure the prejudice." (Citing Loofbourow v. Utah Light & Ry. , 33 Utah 480, 94 P. 981, 983 (1908).) But she does not explain how the testimony and argument she identifies harmed her case or why the jury instruct......
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