Paul v. Salt Lake City R. Co.

• Decision Date: 27 November 1905
• Docket Number: 1644
• Court: Utah Supreme Court
• Parties: PAUL v. SALT LAKE CITY RY. CO. [*]

83 P. 563

30 Utah 41

PAUL v. SALT LAKE CITY RY. CO. ^[*]

No. 1644

Supreme Court of Utah

November 27, 1905

APPEAL from District Court, Salt Lake County; S.W. Stewart, Judge.

Action by Louisa B. Paul against the Salt Lake City Railroad Company. From a judgment in favor of defendant, plaintiff appeals.

REVERSED.

S. P Armstrong for appellant.

APPELLANT'S POINTS.

Plaintiff was entitled to show loss of earnings which she had sustained to the time of the trial, and also to instructions on this point requested. (Townsend v. Paola, 25 Am. & Eng Corp. Cases, 152; Hopkins v. Ry., 72 Am. Dec. 290; Sheehan v. Edgar, 58 N.Y. 631; Eiler v Ry., 49 N.Y. 45; Ry. v. Putnam, 118 U.S. 545, 555; Watson, Damages, p. 585.)

The court should give instructions on any point material to the issue involved. (Cogdell v. Ry., 132 N. Car., 853; People v. Hamilton, 4 Utah 263; People v. Chadwick, 7 Utah 134; Downey v. Gemini M. Co., 24 Utah 440; Allen v. McKay, 120 Cal. 339.)

The court should have given an instruction as to the degree of care required on the part of the passenger. Failure to give such request was error. (Sackett Inst. [2 Ed.], 115; Hughes, Inst., 245-551.)

The carrier is required to exercise the highest degree of care and diligence for the safety of its passengers which is reasonably practicable under the circumstances. (Buswell, Personal Inj., sec. 113; 2 Jaggard, Torts, p. 1083; Cooley, Torts [2 Ed.], 768; Ry. v. Horst, 93 U.S. 295; C. & A. Ry. v. Byrum, 153 Ill. 134; Louisville Ry. v. Snyder, 117 Ind. 437; Koehne v. N.Y. & Q. Ry., 52 N.Y. Suppl. 1089; Ry. v. Reid, 4 Col.App. 68; Simmons v. Steamboat Co., 97 Mass. 368; Keokuk v. True, 88 Ill. 614; O'Connel v. Ry., 106 Mo. 483; Ry. v. Park, 96 Ky. 580, 586, 29 S.W. 455; Derwort v. Loomer, 21 Conn. 253; Bosque v. St. Ry., 131 Cal. 390, 398; Watson v. Ry., 42 Minn. 46, 43 N.W. 904; Manerick v. Ry., 36 N.Y. 380; Brown v. Ry. [Wash.], 47 P. 893; Bonce v. Dubuque Ry., 53 Iowa 278, 36 A. R. 221; Denver Tramway v. Reid, 4 Colo. App. 58; Leonard v. Ry., 67 N.Y. Suppl. 991; Holly v. Ry., 61 Ga. 215, 34 Am. R. 97; Koehne v. St. Ry., 52 N.Y. Suppl. 1089; Booth, St. Ry., secs. 324, 328; Redfield, Carriers, secs. 340, 341.)

"Whether or not appellee was guilty of such contributory negligence in alighting from a moving train as would bar a recovery, was a question of fact, to be determined by the jury under all the attendant and surrounding circumstances." (Ry. v. Hoeffner, 175 Ill. 634; Johnson v. W. C. & P. Ry., 70 Pa. 363; Ry. v. Atkins, 46 Ark. 437; St. Ry. v. Wiswell, 168 Ill. 615; Pence v. Mining Co., 27 Utah 386; Linden v. Anchor M. Co., 20 Utah 147; Bowers v. Ry., 4 Utah 224; Olsen v. Ry., 9 Utah 138; Peck v. Ry., 25 Utah 21; Ry. v. Blumenthall, 160 Ill. 49; St. Ry. v. Leonard, 5 A. 348, 66 Md. 73; Cooper v. Ry., 61 S. Car. 345, 351; C. & A. Ry. v. Byrum, 153 Ill. 137; Doolittle v. So. Ry., 62 S. Car. 142-3; Tramway Co. v. Reid, 4 Colo. App. 60; Holland v. O. S. L. Ry., 26 Utah 212; Hone v. Mammoth Co., 27 Utah 176; Cooley, Torts (2 Ed.), 804.) There is a contractual relation between the carrier and the passenger that does not exist in the case of a stranger; that is, the carrier contracts to carry the passenger without any negligence. (Bonny, Ry. Carriers, p. 14; Stearns v. Spinning Co., 184 Pa. 523; Doolittle v. So. Ry., 62 S. Car. 138.)

The happening of the accident itself established a prima facie case of negligence against defendant, and cast upon it the burden of proof to show that the accident occurred without its fault. (Ry. v. Blumenthall, 160 Ill. 48; Turnpike Road v. Leonhart, 66 Md. 75; Ry. v. Swan, 81 Md. 400, 32 A. 175; B. & O. Ry. v. State, 21 Am. & Eng. Ry. Cases, 204; Gleason v. Ry., 140 U.S. 443-4; St. Ry. v. McClellan, 54 Nebr. 672; Bosque v. Sutro St. Ry., 131 Cal. 390, 400; Bridge Co. v. Quinkert, 28 N.E. 338-341; Stokes v. Santonstall, 13 Pet. 181; Stearns v. Ontario, 184 Pa. 519; Doolittle v. Ry., 62 S. Car. 137-8; Cooper v. Ry., 61 S. Car. 345; Ry. v. Yarwood, 65 Am. Dec. 686-7 and note, 690; Dampman v. Ry., 166 Pa. 520; Ry. v. Snyder, 117 Ind. 437; Laing v. Colder, 8 Pa. 479; Sullivan v. Ry., 72 Am. D. 698; Redf., Carriers, sec. 341.)

Young & Moyle for respondent.

RESPONDENT'S POINTS.

"The evidence of plaintiff's loss of earnings is inadmissible against defendant's objection in an action for personal injuries, in the absence of its specific averment as an element of damage." (Coontz v. M. P. Ry. Co., 115 Mo. 669; Pueblo v. Griffin, 10 Colo. 367; Wabash W. Ry. Co. v. Friedman, 30 N.E. 353; Tomlinson v. Derby, 43 Conn. 562; Silsby v. Mich. Car Co., 95 Mich. 204; City of Chicago v. O'Brennan, 65 Ill. 160-164; Taylor v. Monroe, 43 Conn. 36; Dabovich v. Emeric, 12 Calif. 171.)

Late opinions of the courts are to the effect that a party to an action, when his witness proves adverse, can prove contradictory statements of the witness as bearing upon his credibility and relieving the party from his surprised condition. (People v. DeWitt, 68 Calif. 586; People v. Kruger, 100 Calif. 523; Williams v. Dickinson, 28 Fla. 90; Skipper v. State, 59 Ga. 66; Conway v. State, 118 Ind. 482; Champ v. Com., 2 Met. [Ky.] 23; Ryerson v. Abington, 102 Mass. 530; White v. State, 10 Tex. App. 381; Davis v. State, 21 S.W. 369; Hurlburt v. Hurlburt, 63 Vy. 667; Greenough v. Eccles, 5 C. B. N. S. 786. These cases are referred to on pages 319 and 320, 10 Enc. Pl. & Pr.)

In the giving of instructions all that is necessary is that the law with reference to the facts in issue be properly presented to the jury. (Chapman v. S. P. Ry. Co., 12 Utah 45; Ry. Co. v. Leak, 163 U.S. 280; Downey v. Gemini M. Co., 24 Utah 440; Beaman v. Martha Washington Co., 23 Utah 139; Blashfield on Instructions to Juries, sec. 83.)

Requests that involve statements or terms that need explanation are properly refused, unless requests are also propounded explaining such expressions. (Dickert v. S. L. C. R. R. Co., 20 Utah 400; Boogher v. Neece, 75 Mo. 383; Derham v. Derham [Mich.], 83 N.W. )

No particular definition of the word negligence is necessary and was sufficiently stated in instructions. (Downey v. Gemini Mining Co., 24 Utah 438-441; Smith v. Bank [N.H.], 46 A. 230; Birmingham v. Tennessee, 28 Southern 679; State v. Goff, 61 P. 680; Beaman v. Martha Washington Co., 23 Utah 139.)

Instructions must be considered together, and there is no error unless from the whole charge it is reasonably apparent that the jury were misled. (Major v. O. S. L. R. R. Co., 21 Utah 150; Konold v. R. G. W. Ry. Co., 21 Utah 397; State v. McCoy, 15 Utah 141; Chapman v. Southern Pacific Co., 12 Utah 45.)

Appellant cannot request an instruction and then complain because the request is granted. (Osborne v. Insurance Co., 23 Utah 436; Davis v. Railway Co., 3 Utah 218; People v. Gough, 2 Utah 70; Downey v. Gemini Mining Co., 24 Utah 440; Chapman v. Southern Pacific, 12 Utah 45; Konold v. R. G. W. Ry. Co., 21 Utah 397.)

In taking exceptions to the instructions, the particular part of the instruction must be pointed out so that the court may have an opportunity to correct in case there is error involved in it. (Mathews v. Daly-West Mining Co., 27 Utah 201; Whipple v. Preece, 24 Utah 372; People v. Thiede, 11 Utah 241, 159 U.S. 521.)

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

OPINION

STRAUP, J.

1. This was an action brought by appellant against respondent to recover damages for an injury alleged to have been sustained by her while she was a passenger on a street car operated by respondent. On the part of the appellant it was shown that she had notified the conductor when he collected her fare that she desired to leave the car on the north side of a certain street, a usual stopping place; that the car stopped at said place, and whilst she was in the act of getting off the car was suddenly and without warning started, whereby she was thrown to the ground and injured. The respondent admitted that the appellant had given timely notice to have the car stopped at said place; it claimed, however, the conductor gave the signal to the motorman to stop, when the front end of the car (twenty to thirty feet in length) was at the north side of the street, but because of the downgrade, wet rails, and the trolley off, the motorman was unable to stop the car until it had reached the south side of the street, and claimed that the plaintiff attempted to alight from the car while it was in motion.

Among other things the court charged the jury:

"(5) It is the duty of a common carrier of passengers to give such passengers a reasonable opportunity to alight from its car before starting the car; and if you find from the evidence that plaintiff, in the exercise of due care and prudence on her part, and while the car was standing still at a place where passengers might reasonably get off, was in the act of getting off from said car, and that the defendant, by its servants, started the car while plaintiff was so getting off, and before she had a reasonable time to do so, and without notice to her that the car was about to start, and thereby plaintiff was injured, then the defendant would be liable for the injury thus sustained by plaintiff.

"(6) You are instructed that even if you believe from the evidence in this case that the conductor failed or neglected to stop the car where requested by the plaintiff, or at its usual stopping place, still such failure or neglect would not justify the plaintiff in attempting to leave the car while it was in motion; and if you believe from the evidence that the plaintiff did attempt to leave the car while it was in motion, she did so at her own risk, and if she was injured by reason of such attempt, then she was guilty of contributory negligence, and cannot recover.

"(7) If you believe from the...