Paul v. Salt Lake City R. Co.

• Decision Date: 08 April 1908
• Docket Number: 1892
• Citation: 34 Utah 1,95 P. 363
• Court: Utah Supreme Court
• Parties: PAUL v. SALT LAKE CITY R. CO

95 P. 363

34 Utah 1

PAUL v. SALT LAKE CITY R. CO

No. 1892

Supreme Court of Utah

April 8, 1908

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Personal injury action by Louisa B. Paul against the Salt Lake City Railroad Company. Judgment for defendant and plaintiff appeals.

AFFIRMED.

S. P Armstrong for appellant.

APPELLANT'S POINTS.

Failure to give proper instructions requested is ground for new trial. (Hayne, New Trial, secs. 120-124; 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; Coddell v. Railroad 132 N. Car. 853.

"A prima facie case of negligence is made out by the testimony of the plaintiff, that being a passenger on defendant's street car, she indicated her desire to leave it, which stopped to enable her to do so, and that while she was in the act of leaving, and before she could place herself safely on the ground, it started and threw her." (Paul v. Railroad, 30 Utah 49; Gleason v. Railroad, 140 U.S. 443-4; Stokes v. Stanstall, 13 Pet. 181; Stearns v. Ontario, 184 Pa. St. 519; Dampman v. Railroad, 166 Pa. St. 520; Laing v. Colder, 8 Pa. St. 479; Railroad v. Swan, 81 Md. 400; Railroad v. Yarwood, 65 Am. D. 686-7, and note 690; Railroad v. Snyder, 117 Ind. 437; Sulliran v. Railroad, 72 Am. D. 698; Redf. Carriers, sec. 341.)

The carrier bound itself to carry the passenger safely and without any negligence so far as human care and foresight would go. (Chitty on Carriers, p. 256; Bonny, Ry. Carriers, p. 14; Stearns v. Spinning Co., 184 Pa. St. 523; Doolittle v. Railroad, 62 S. Car. 138; La Blank v. Sweet, 31 So. 772.)

"Whenever there may reasonably be a difference of opinion as to the inferences and conclusions from the facts, it is likewise a question for the jury. It belongs to the jury, not only to weigh the evidence and find upon the questions of fact, but to draw conclusions as well, alike from disputed and undisputed facts. (Johnson v. Railroad, 70 Pa. St. 363; Railroad v. Hoeffner, 175 Ill. 634; Railroad v. Atkins, 46 Ark. 437; Railroad v. Wiswell, 168 Ill. 615.)

This rule is so well established in this jurisdiction that it should not be necessary to cite authorities. (Paul v. Railway, 30 Utah 46; Pence v. Mining Co., 27 Utah 386; Linden v. Anchor M. Co., 20 Utah 147; Bowers v. Railroad, 4 Utah 224; Olson v. Railroad, 9 Utah 138; Peck v. Railroad, 25 Utah 21; Holland v. Railroad, 26 Utah 212; Hone v. Mammoth M. Co., 27 Utah 176; Cooley, Torts, p. 804; Railroad v. Byrum, 153 Ill. 137; Doolittle v. Railroad, 62 S. Car. 137; Cooper v. Railroad, 61 S. Car. 345.)

P. L. Williams for respondent

RESPONDENT'S POINTS.

While we agree with counsel's first premise that "Failure to give proper instructions requested, is ground for new trial," it should also be remembered that if the court, in its instructions given, fully covers the grounds indicated by the requests, so as to fairly submit them to the jury it is sufficient; and it is not necessary to use the precise language adopted by counsel in his requests. (Konold v. Railroad, 21 Utah 379; Scoville v. City, 11 Utah 66; Cunningham v. Railroad, 4 Utah 206; Thiede v. Utah, 159 U.S. 510.)

"The burden of proving negligence rests on the party alleging it, and when a person charges negligence on the part of another as a cause of action, she must prove the negligence by a preponderance of the evidence." (Brown v. S. P. Co., 7 Utah 288; Fritz v. Elec. Light Co., 18 Utah 494; Beebe v. St. Louis Transit Co., 103 S.W. 1019.)

"The instructions given to the jury by the trial court should be considered together, and even though detached facts of the instructions appear to be erroneous, yet if the charge considered altogether correctly presents the law, it will not be erroneous." Hamer v. Bank, 9 Utah 215; Major v. Railroad, 21 Utah 141; People v. Wiggins, 1 Utah 324; People v. Lyman, 2 Utah 30; Rufatti v. Mining Co., 10 Utah 286; State v. McCoy, 15 Utah 151; Thiede v. Utah, 159 U.S. 510.)

"It is not proper to point out a single instruction and claim it to be objectionable of itself, but all the instructions must be considered together." (Nickels v. Wells, 2 Utah 167; People v. Olsen, 4 Utah 413; State v. Williams, 22 Utah 248.)

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

OPINION

FRICK, J.

This is the second appeal of this case. The opinion on the first appeal is reported in 30 Utah 41, 83 P. 563, where judgment in favor of respondent was reversed upon the ground that the court committed error in its instructions to the jury. The facts developed on the second trial are practically the same as on the first, and they now appear to be as stated by Mr. Justice Straup on the former appeal.

The principal matters presented for review on this appeal, so far as they relate to the trial, involve the questions of contributory negligence on the part of appellant in alighting from a street car on which she was a passenger which was being operated by respondent, and the presumptions of negligence arising against the respondent by reason of the occurrence of the accident and injury to appellant. The court's instructions were very full and cover every phase of the case. Among other instructions, the court gave the following: "The mere fact that an accident has happened is not sufficient proof to charge the defendant with negligence nor the plaintiff with contributory negligence. The burden of proving negligence rests on the party alleging it, and when a person charges negligence on the part of another as a cause of action she must prove the negligence by a preponderance of the evidence. While the mere fact that an accident has happened is not sufficient proof to charge the defendant with negligence, yet, in this case the court instructs you that if you find from the evidence that while plaintiff was a passenger on defendant's street car, and while she was attempting to alight therefrom, she was injured by the car starting and jerking her to the ground, the fact, if you find it to be a fact, that she was injured by such starting and jerking of the car constitutes prima facie evidence of negligence on the part of defendant, and casts on the defendant the burden of showing that such starting took place without its fault, or that the injury occurred through the contributory negligence of the plaintiff. But the court instructs you that the burden of showing that she was injured by reason of such starting of the car is on the plaintiff, and there is no presumption from the mere fact that she was injured that the car was not in motion when she attempted to alight, nor is there any presumption that the car was not in motion when she attempted to alight from the mere fact of the injury. Whether or not the car was in motion is a fact that you must determine from the evidence." Appellant excepted to certain portions of this instruction and now urges the giving of these parts as error.

On the former appeal we announced the following doctrine: That respondent had made out a prima facie case upon proving that she was a passenger on one of appellant's cars. That she had indicated her desire to leave it, and that the car was stopped to enable her to do so. That while in the act of alighting and before she had done so the car started and caused her to fall. We further held that the instructions of the court were not in harmony with this doctrine, but in conflict therewith, and hence held the instructions erroneous. Counsel for appellant now asserts that the foregoing instruction in its effect is practically the same as the one condemned by this court and hence likewise erroneous. Counsel, as we understand him, contends the law as between carrier and passenger to be that, if an accident of any kind occurs, or if a passenger is found injured or dead by the side of the track, or in a railway car, all that the plaintiff is required to prove is that the injured or deceased person was a passenger, and that while sustaining that relation was injured or killed. From such an injury or death it is contended the presumption arises that the passenger was injured or killed through the negligence of the carrier and the burden is cast upon him to explain the cause of the injury or death and thus purge himself of negligence. This, counsel says, is the necessary result of the application of the maxim "res ipsa loquitur." Is this contention sound? We think not. It is quite true that, as between carrier and passenger, the maxim applies in most instances. But it does not go to the extent contended for by counsel. We have very recently had occasion to consider and pass upon the application of the maxim as applied to carrier and passenger in the case of Dearden v. S. P., L. A. & S. L. R. Co., 33 Utah 147, 93 P. 271. Mr. Justice Straup, in that case, at page 273, states the rule in the following language:

"All that the plaintiff here was required to aver and prove to entitle him to recover was the relation of passenger and carrier; that the accident through which he received his injuries was connected with the means or instrumentality used by the defendant in the transportation, and an injury resulting therefrom. When such facts were shown, a prima facie presumption arose that the accident was occasioned by the defendant's negligence, and the burden was cast on it to show that it was not at fault, and that the accident was not caused by its negligence."

This, we think, is a correct statement of the rule, as it is held to be by the great weight of authority.

In Price v. St. L. I. M. & S. Ry. Co., 75 Ark., at page 491, 88 S. W., at page 578 (second column) 112 Am. St. Rep. 79, the Supreme Court of Arkansas adopts and quotes the following language which is termed to be the true rule:

"The true...