Taylor v. Ogden City
| Decision Date | 27 March 1923 |
| Docket Number | 3875 |
| Citation | 61 Utah 455,214 P. 311 |
| Court | Utah Supreme Court |
| Parties | TAYLOR v. OGDEN CITY |
Appeal from District Court, Second District, Weber County; George S Barker, Judge.
Action by Alex Taylor against Ogden City. Judgment for plaintiff and defendant appeals.
REMANDED WITH DIRECTIONS TO REQUIRE REMITTITUR AND AFFIRM.
Wade M Johnson and S. C. Powell, both of Ogden, for appellant.
N. J. Harris, of Ogden, for respondent.
This is an appeal by Ogden City, hereinafter called appellant, from a judgment awarding damages to the plaintiff, hereinafter styled respondent, for personal injuries which he alleged he suffered by reason of appellant's negligence in permitting a certain street and crosswalk to become and be out of repair and dangerous to those required to use the same. The appellant denied the alleged negligence, and as an affirmative defense pleaded contributory negligence on the part of respondent.
The errors assigned and relied on by appellant, stating them in the language of its counsel, are:
"(1) That the trial court erred in denying defendant's motion for a nonsuit; (2) that the trial court erred in instructions to the jury in that the trial court did not instruct the jury to bring in a verdict of no cause of action; (3) that the trial court erred in denying defendant's motion for a new trial."
Respondent's evidence with regard to the accident is to the effect that on the evening of February 17, 1921, he, in company with his wife and a Mrs. Williams, was crossing one of the principal streets in the business district of the city of Ogden; that in passing over or along the crosswalk respondent "slipped" into a hole in the pavement near the center of said street; that the hole, stating it in his own language, was about 6 inches deep in the deepest place," and was "about 14 inches east * * * and about 18 inches north and south." Another witness said the hole was about a foot east and west and about a foot and a half north and south, "and was about 2 inches deep in one end and from 4 to 6 inches deep at the other end"; that respondent stepped into the hole, and fell down in the street, and received the injury complained of. It also appeared that there was much travel on the street in question and that many people were passing to and fro over the crosswalk at the time the respondent stepped into the hole, and that neither he nor those who were with him observed the hole in the street before respondent was injured as before stated.
There was evidence produced by appellant to the effect that there was no hole, but a mere depression, of less depth than that testified to by respondent and his witnesses. The character and extent of the defect was, however, a matter exclusively for the jury to determine from the evidence, and for the purpose of this appeal, we must assume that the jury adopted the statements of respondent and his witnesses. There was also evidence produced on behalf of respondent that the hole was at the place in question for at least two months prior to the accident.
The city commissioners of appellant, who testified on its behalf, in substance said that, although all of them had frequent occasion to pass, and did pass, along and over the crosswalk in question, they at no time had observed the defect prior to the accident, and not until their attention was directed to it thereafter.
At the conclusion of respondent's evidence appellant interposed a motion for a nonsuit, and at the conclusion of all of the evidence it requested the court to charge the jury to return a verdict in its favor. It is now insisted that the court erred in denying both the motion for nonsuit and the request to charge as aforesaid. It is also insisted that the evidence is insufficient to justify a finding of negligence upon the part of appellant. As before stated, the weight of the evidence and the credibility of the witnesses were matters for the jury to determine. If, therefore, the evidence most favorable to the respondent's contention is sufficient to sustain the jury's finding, we are powerless to interfere, unless there is some error of law which would vitiate their finding.
Under the repeated decisions of this court the evidence produced on behalf of respondent relating to the defect in the street was sufficient to justify a finding of negligence on the part of appellant. That question is settled by this court in the case of Shugren v. Salt Lake City, 48 Utah 320 159 P. 530, where the prior decisions of this court, together with a large number of cases from other courts, are cited and reviewed, in which cases numerous defects in streets and sidewalks are set forth and described. A mere cursory examination of the Shugren Case will at once make clear that to permit the...
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