Ortega v. Thomas
| Decision Date | 28 June 1963 |
| Docket Number | No. 9709,9709 |
| Citation | 383 P.2d 406,14 Utah 2d 296 |
| Parties | d 296 Delfin E. ORTEGA, Plaintiff and Respondent, v. Perry Arthur THOMAS, Defendant and Appellant. |
| Court | Utah Supreme Court |
Hanson & Baldwin, Merlin R. Lybbert, Salt Lake City, for appellant.
K. Samuel King, Salt Lake City, for respondent.
Plaintiff obtained a jury verdict for damages to his automobile and personal injury to himself which resulted from an automobile collision. Defendant appeals.
In setting forth the basis for appeal defendant's counsel have recited the facts according to their own view of the evidence. The rule is so fundamental that the facts must be viewed in the light most favorable to the party who prevailed below, 1 that it is an indefensible imposition upon this court and opposing counsel not to follow it.
On July 12, 1960, three sailor boys, the defendant, Perry A. Thomas, his brother, Larry, and another passenger, Delbert Schuller, were enroute back to their post after leave from the Navy. In the early morning, about 6:30 a. m., defendant was driving his 1952 Ford sedan, pulling a trailer westward on North Temple Street in Salt Lake City. As he passed over the railroad viaduct, approaching Fifth West Street, he was traveling at an excessive speed, 45 miles per hour. As he approached the traffic light at the intersection of Fifth West, it was red against him, but he proceeded on into the intersection, striking the rear end of the plaintiff's car, which had entered the intersection from the north at a moderate speed and on the green light. Plaintiff was hit so hard that it spun his car around and caused the injury and damage which are the bases of this lawsuit.
Defendant makes no contention, and advisedly so, about the finding of his own negligence. His primary claim of error relates to the giving of two instructions. In Instruction No. 12 the court told the jury that if they found the defendant negligent, and that it proximately caused plaintiff's injury, '* * * you should determine the damages sustained by the plaintiff * * *.' and in No. 14 defined contributory negligence and stated that, 'one who is guilty of contributory negligence may not recover from another for any injury suffered * * *.'
After the jury had deliberated for several hours they came back and requested the court for additional guidance regarding these instructions. Upon consultation with counsel for both sides, and without objection from either of them, the court stated to the jury as follows:
Defendant argues that the giving of Instructions Nos. 12 and 14 referred to above, separately and without correlating them, would confuse the jury, citing the case of Ivie v. Richardson. 2 It is true that we there voiced some criticism of similar instructions. In regard to that case, and its possible application here, these observations should be made. The criticism was also leveled at another fault. The instruction regarding negligence ended with the phrase, 'then your verdict must be in favor of the plaintiff and against the defendant.' Aware that instructions in that form, often referred to as 'formula' instructions, sometimes occur over and over again in requests for instructions, or in some instances in instructions actually given by the court, we observed that the instructions in that form are undesirable because they tend to be partial and argumentative. It will be noted that the criticism was in mild language, stating that 'It is better to avoid giving such instructions,' and went on to say, 'of more importance is the (next) error assigned * * *.' While we think the criticism is justified, and we reiterate it, the reversal was not placed solely on that ground. On the other hand, there is precedent for refusing to do so.
In the case of Cromeenes v. San Pedro, L. A. & S. L. R. R. Co., 3 the court had similarly charged in a separate instruction as to negligence and the right of recovery without reference to contributory negligence. It was contended that by the giving of this instruction the court, 'entirely disregarded the defense of contributory negligence.' But this court, through Justice McCarty, pointed out that the matter was taken care of because in another instruction the court had appropriately treated the question of contributory negligence, and stated that the plaintiff could not recover if guilty, just as was done in the instant case. Reference was made to the traditional rule that the instructions must be read and considered together; and that in supplementing each other, they together contained a correct statement of the law; and the judgment was affirmed.
In the instant case the trial court similarly gave an...
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...there is at least a reasonable likelihood that in the absence of the error the result would have been different.” Ortega v. Thomas, 14 Utah 2d 296, 383 P.2d 406, 408 (1963); see also Utah R. Civ. P. 61 (providing that a harmless error is one that “does not affect the substantial rights of t......
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...of the action more probable or less probable than it would be without the evidence."1 Utah R.Civ.P. 61; Ortega v. Thomas, 14 Utah 2d 296, 300, 383 P.2d 406, 408 (1963).2 Vicarious liability was premised on the fact that the boat was entrusted to one under eighteen years of ...
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...Mortgage Elec. Registration Sys., Inc., 2011 UT App 232, ¶ 6, 263 P.3d 397 (second alteration in original) (quoting Ortega v. Thomas, 14 Utah 2d 296, 383 P.2d 406, 408 (1963)). SeeUtah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proce......
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State v. Brafford, 18179
...v. Cannady, 8 Cal.3d 379, 105 Cal.Rptr. 129, 503 P.2d 585 (1972), and State v. Aubuchon, Mo., 394 S.W.2d 327 (1965).7 Ortega v. Thomas, 14 Utah 2d 296, 383 P.2d 406 (1963). See also, U.C.A., 1953, § ...