Sharp v. Ogden Rapid Transit Co.
| Decision Date | 02 October 1916 |
| Docket Number | 2917 |
| Citation | 160 P. 438,48 Utah 481 |
| Court | Utah Supreme Court |
| Parties | SHARP v. OGDEN RAPID TRANSIT CO |
Appeal from District Court, Second District; Hon. N. J. Harris Judge.
Action by Ethel Sharp, a minor, by Milo R. Sharp, as guardian ad litem, against the Ogden Rapid Transit Company.
Judgment for plaintiff. Defendant appeals.
AFFIRMED.
Boyd De Vine & Eccles, for appellant.
John G Willis, for respondent.
OPINION
Ethel Sharp, a minor, by her father as guardian ad litem, brought this action against the defendant, a corporation, which owns and operates a street railway in Ogden City, Utah, to recover damages for personal injuries, which, it is alleged, were suffered in a collision occasioned by the negligence of the defendant in operating its cars while she was a passenger on one of them. After alleging the necessary matters of inducement, and that two cars operated by the defendant running in opposite directions were caused to collide through defendant's negligence, she alleged she had sustained personal injuries "in and about her head, left ear, abdomen, body, and internal organs; and suffered a great and irreparable shock and injury to her nervous system, from which she was made sick and sore, and her hearing impaired, and was confined to her bed; and she has suffered great and continual pain as the results thereof, and, as she is informed and believes, will continue so for a long period of time, probably for the remainder of her life." It is then alleged how the injuries have affected plaintiff and have prevented her from attending school and from following her usual vocation. Damages were prayed for.
The defendant in its answer denied negligence on its part, and further alleged that if plaintiff was injured and damaged by such collision both were greatly enhanced by reason of her own negligence in failing to secure proper medical attention and in failing to exercise ordinary care in caring for her injuries.
According to defendant's abstract of the evidence, the father of the plaintiff testified that she, at the time of trial, was about 17 years of age; that she was injured in a collision on the morning of the 12th day of January, 1914, while a passenger on one of defendant's street cars; that since her injuries she had been "very sickly and an invalid nearly all of the time"; that she was confined to her bed about 10 months, beginning the day after the accident; that she, ever since the accident, had "been almost entirely incapacitated for work"; that before the injuries she was strong and healthy and had always helped her mother in doing the ordinary household work. The witness, in the language of a layman, also described the injuries and bruises as he saw them on the body of the plaintiff after she came home in the evening after school, the accident having occurred in the morning while she was on her way to school. The witness said that he examined plaintiff's body and that he "saw a slight bruise * * * immediately below the ribs on the right side" of her body. He further said "she was lame in her right leg, and this continued for 6 or 8 months; she has complained of headaches ever since; she seemed unable to sleep soundly at all for many months and seemed nervous and unstrung."
On cross-examination the witness a little more fully described what he had observed on plaintiff's body on the evening of the day of the accident, and that he did not discover anything, except two slight bruises on her body and a discoloration of the right side, and some injury to the ear; that the family physician was called in to see plaintiff; that he visited her a number of times and prescribed some remedies; that plaintiff did not take a great deal of medicine. Other witnesses were called who testified to the accident and of seeing plaintiff on the morning when it occurred and immediately thereafter; that she went to school as usual on the day of the accident, and from her actions and conduct she did not seem to be greatly injured, if at all. The family physician and another doctor also testified to plaintiff's physical condition as they observed it immediately before the trial.
It is not necessary to state the evidence further, and we have given the foregoing, not as a synopsis of the whole evidence, but merely as indicative of the trend of plaintiff's evidence, and for the purpose of aiding the reader to better understand the alleged errors which we shall hereafter discuss.
The jury returned a verdict in favor of plaintiff for $ 4,000 upon which judgment was duly entered, from which the defendant appeals. While numerous errors are assigned, yet appellant's counsel, in their brief, limit the propositions or errors relied on to four only. Giving their position in their own language, it is this:
"Our position is, that the court erred, first, in excluding testimony as to the conduct of the plaintiff during the two days following the accident; second, that it erred in permitting and allowing the physicians for the plaintiff to testify that the collision in question produced the injuries complained of; and, third, that the court erred in refusing the physical examination under the record in this case; and, fourth, that it therefore erred in refusing a new trial."
The first alleged error arose as follows: A Miss Thomas, who was on the car with the plaintiff at the time of the accident, was called by plaintiff, and she testified fully what she observed, and described plaintiff's conduct both in her testimony in chief and upon cross-examination. In concluding her cross-examination, however, defendant's counsel put this general question to the witness:
"Did you notice anything in her (plaintiff's) condition that indicated that she was hurt?"
The question was objected to as incompetent and immaterial. The court sustained the objection, and the defendant duly excepted, and now insists that the ruling was prejudicial to the defendant's rights. Counsel, in their brief, arguing the alleged error, say:
"The question was on cross-examination and was a general summary aside from the direct questions of her observations of the plaintiff."
The record shows this statement to be correct. We think that, in and of itself, is sufficient ground for holding the ruling if erroneous at all, not to have been prejudicial to the defendant's rights. The witness had fully stated her observations concerning plaintiff's actions and conduct. The answer to the question would, therefore, merely have been in the nature of a conclusion on her part or a "summary," as counsel...
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