Sullivan v. Salt Lake City

• Decision Date: 26 March 1896
• Docket Number: 630
• Citation: 44 P. 1039,13 Utah 122
• Court: Utah Supreme Court
• Parties: SAMANTHA SULLIVAN, ADMINISTRATRIX OF CORNELIUS SULLIVAN, DECEASED, RESPONDENT, v. SALT LAKE CITY, APPELLANT

44 P. 1039

13 Utah 122

SAMANTHA SULLIVAN, ADMINISTRATRIX OF CORNELIUS SULLIVAN, DECEASED, RESPONDENT, v. SALT LAKE CITY, APPELLANT

No. 630

Supreme Court of Utah

March 26, 1896

Appeal from the district court of the Third judicial district Territory of Utah. Hon. S. A. Merritt, Judge.

Action by Samantha-Sullivan, administratrix of Cornelius Sullivan deceased, against Salt Lake City for damages sustained by the death of plaintiff's husband while in the employ of defendant. From a judgment for plaintiff defendant appeals.

Affirmed.

E. D Hoge and W. G. Van Horne, for appellant.

Evidence of specific acts of negligence or carelessness on other occasions than the one in question, are not admissible. Black, Proof and Pleading in accident cases, Secs. 45 and 46; Parker v. Portland Pub. Co., 69 Me. 173; Robinson v. Fitchburg R. R. Co., 7 Gray 92.

Nor can the proof of a custom be adduced to show negligence. Black, Proof and Pleading in accident cases, Sec. 37; Gulf, etc., Ry. Co. vs. Evanick, 61 Tex. 3.

In the case of injury to a child playing on a railroad company's turn-table, the custom of other companies to keep their turn-tables locked does not make the first company negligent. Black, Proof and Pleading, etc., Sec. 38; Mason v. Missouri Pacific R. R. Co., 27 Kan. 83.

Neither is it competent to show, in an action for damages from a fall on ice which had formed on a street crossing from the water attachments, that it is the custom among street sprinklers not to visit their pipes after the close of the season until the opening of the next. Crocker v. Scheweman, 7 Mo.App. 358; Michigan Cent. R. R. Co. v. Coleman, 28 Mich. 440.

The complaint alleged negligence on the part of the defendant; defendant specifically denied all the allegations of negligence alleged in the complaint; pleads certain facts and then charges the deceased with carelessness and negligence.

This answer in no way changes the issue or shifts the burden of proof to the plaintiff. The issues were, simply, was the deceased free from negligence, and was the defendant city negligent? It does not follow, conceding that deceased was without fault, that the defendant was liable.

Powers & Straup, for respondent.

Similar acts of negligence have been held admissible for the purpose of proving a negligent habit. Grand Trunk Railway Co. v. Richardson, 91 U.S. 454; Davidson v. St. Paul R. R. Co., 34 Minn. 51; Butcher v. R. R. Co., 67 Cal. 518; Dist. Columbia v. Armes, 107 U.S. 519; Bower v. Chicago R. R. Co., 19 Am. & Eng. R. R. C. 301; Parkinson v. Nashua, etc., 61 N.H. 416; State v. Railroad, 52 N.H. 528; M. & P. R. R. Co. v. Neiswanger, 39 Am. & Eng. R. R. C. 471.

The evidence if not competent was not prejudicial and not reversible error. 34 Am. & Eng. R. R. C. 456.

The evidence was more favorable to appellant than to respondent. For if appellant had been in the habit of jamming the cars back in the dirt as described by witness, then it may be presumed or inferred that deceased knew of it, and he was therefore called upon to use more care under the circumstances than he would otherwise be required to do. Appellant cannot be heard to complain of the admission of evidence in its favor.

The instruction given to the jury by the trial court should be considered altogether, and even though detached parts of the instruction may appear erroneous, yet, if the charge considered altogether correctly presents the law, it will not be considered erroneous. Hamer v. National Bank, 9 Utah 215, and cases there cited; Baltimore R. R. v. Makey, 157 W. S. 72.

Appellant should not be heard to complain of the refusal to give a request presented by it that was so illegible that the court could not read it.

ZANE, C. J. MINER, J., concurs. BARTCH, J., concurs in the conclusion reached.

OPINION

ZANE, C. J.:

This suit was brought by Samantha Sullivan, administratrix of the estate of the late Cornelius Sullivan, to recover damages in consequence of the death of the latter, caused, as alleged, by the negligence of the defendant. The deceased was employed by the defendant at the time of the injury complained of, and had just finished loading a car with gravel, when defendant's engineer, without any warning to deceased, as alleged, ran an engine back against it, and crushed him against the bank of the gravel pit, so that he soon after died. In its answer the city denied the negligent acts averred in the complaint, and alleged contributory negligence on the part of the plaintiff.

In the examination of a witness the following questions were asked by the plaintiff, and answered by the witness against the objection of the defendant: "Was it the custom to jam the cars back in that way? Had you ever seen it done before?" The witness answered: "Oh, it was done many times,--common occurrence." To the overruling of the objections the defendant excepted, and assigns it as error. The complaint charges that negligence of the defendant at the time of the injury caused the death of Sullivan. The plaintiff could not rely on negligent acts before that time, or upon a custom. Defendant was not liable for past neglect from which no injury resulted, or for habitual negligence. And the fact that the witness had seen cars jammed back against the bank before the time of the injury, or that he knew it was a common occurrence, was not admissible to prove negligence by the defendant. Jenkins v. Irrigation Co. (decided at the present term), 13 Utah 100, 44 P. 829; Parker v. Publishing Co., 69 Me. 173; Railway Co. v. Evansich, 61 Tex. 3. Evidence that cars have often been run back in the same way against the bank, and that it was a common occurrence, to the knowledge of the deceased, would have been relevant and admissible, however, on the issue of contributory negligence, to aid the jury in determining the degree of care the deceased was using at the time he was injured. A man is required to use more care in a place he knows to be dangerous than in one he does not. He must be judged by what he knows, or by what he ought to know as a reasonable man. Pennsylvania Co. v. Stoelke, 104 Ill. 201. And it would have been proper for the plaintiff to offer evidence in rebuttal of such evidence by the defendant. In cross-examination of the same witness the defendant asked: "Was it usual, in coupling, for the cars to run back against that bank? Answer. Yes, sir; they backed right up. Q. You knew that, didn't you? A. Yes, sir. Q. Didn't everybody else know it that was there? A. I suppose they did. Q. Could they have helped knowing it? A. No, sir; I don't think they could." On cross-examination the witness was asked whether the cars...