Shaw v. Salt Lake City Railroad Co.

• Decision Date: 15 December 1899
• Citation: 59 P. 552,21 Utah 76
• Court: Utah Supreme Court
• Parties: ARTHUR H. SHAW, RESPONDENT, v. SALT LAKE CITY RAILROAD COMPANY, APPELLANT

59 P. 552

21 Utah 76

ARTHUR H. SHAW, RESPONDENT, v. SALT LAKE CITY RAILROAD COMPANY, APPELLANT

Supreme Court of Utah

December 15, 1899

Appeal from the Third District Court, Salt Lake County, Hon. A. N Cherry, Judge.

Action to recover damages for injuries alleged to have been caused by the negligence of defendant company. From a judgment for plaintiff, defendant appealed.

Affirmed.

Messrs Pierce, Critchlow & Barrette for appellant.

The case is governed by the well-established rule, that the master will not be bound by his agent's declaration as to past transactions. The rule is laid down in Mechem on Agency 714; 1 Greenleaf on Evidence, Sec. 113; Rice's Law of Evidence, Sec. 348, et seq.

Our court cites, with approval, the rule laid down by the Supreme Court of the United States in Railroad Company v. O'Brien, 119 U.S. 99.

The court erred in refusing to instruct the jury as requested by defendant, that if in the hurry of the moment, or in a moment of forgetfulness, the plaintiff attempted to cross the track without exercising that care which a man of ordinary prudence ought to exercise under the circumstances, he was guilty of contributory negligence, and can not recover. Burgess v. Salt Lake City R. Co., 17 Utah 406; Hall v. Railway Co., 13 Utah 243, and cases cited.

Messrs. Zane & Rogers, for respondent.

The court did not err in permitting witness Tyson to testify that the motorman said just after the collision that he forgot to ring the bell. Jones on the Law of Evidence, Secs. 847, 360; Insurance Co. v. Mosley, 8 Wall., 397; Linderberg v. Crescent M. Co., 9 Utah 163; Wilson v. Southern P. Co., 13 Utah 352; Keyser v. C. & G. T. Ry. Co., 66 Mich. 390.

"Both parties being negligent, the true rule is held to be that 'the party who last has a clear opportunity to avoid the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it.'" Hall v. Railway Co., 13 Utah 243; Thompson v. Salt Lake Rapid Transit Co., 16 Utah 281.

BASKIN, J. BARTCH, C. J., and MINER, J., concur.

OPINION

BASKIN, J.

This is an action in which the plaintiff seeks to recover damages for injuries alleged to have been received by him through the negligence of the defendant.

It is alleged in the complaint, "That the defendant, in violation of its duty, so negligently managed and operated its car that the said plaintiff while crossing the railway track upon said street with the horse and cart, and while in the exercise of due care on his part, was struck by the car and thrown from the cart upon the ground and greatly injured. That the negligence of the said defendant in managing and operating its car consisted in this, that notwithstanding the fact that the plaintiff was crossing the said track, with his back toward the advancing car, and, although he was in plain sight of the motorman upon said car, the said motorman, without slackening his speed in any way, and without giving warning of the approach of said car, although he had a fair chance and the ability to stop the said car before striking the said plaintiff, nevertheless ran the said car so that he drove it in and upon the said cart of plaintiff, and thereby caused to the plaintiff the injuries aforesaid."

The answer denied these allegations, and alleged contributory negligence on the part of the plaintiff.

The jury returned a verdict in favor of plaintiff for $ 800; a judgment was rendered for that amount against the defendant, from which judgment the defendant appealed.

1. The first objection raised by defendant is that the witness Tyson was permitted to testify that the motorman in charge of the car by which the plaintiff was injured, within a few minutes after the accident, and at the place where it occurred, and while the agents of the defendant, in charge of the car, and the plaintiff were still present, in answer to the question by witness, "Why did n't you ring the bell?" replied, "I forgot it."

This testimony was introduced in rebuttal. F. W. Blacklock, the motorman, had, before the introduction of the foregoing testimony, been placed upon the...