Thomas v. Ogden Rapid Transit Co.

• Citation: 155 P. 436,47 Utah 595
• Decision Date: 11 February 1916
• Docket Number: 2795
• Court: Utah Supreme Court
• Parties: THOMAS v. OGDEN RAPID TRANSIT CO

155 P. 436

47 Utah 595

THOMAS v. OGDEN RAPID TRANSIT CO

No. 2795

Supreme Court of Utah

February 11, 1916

Appeal from District Court, Second District; Hon. N. J. Harris Judge.

Action by F. M. Thomas against the Ogden Rapid Transit Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Boyd De Vine & Eccles, for appellant.

APPELLANT'S POINTS.

We are aware that the books are full of cases relating to the question of whether certain amounts of damages allowed are excessive or otherwise. Each case must be largely determined by its own facts. We, however, cite the following cases, as illustrative not only of the general trend of the decisions of the courts to fairness in measuring the damages by the injuries sustained, and because, by comparison, at least with the injuries here the following cases show the rank injustice of the amount of $ 4,000 in the case at bar as compared with the facts disclosed by the evidence here:

Opsahl v. N. P. R. R. Co., 138 P. 681 (Wash); Kentucky T. & T. Co. v. Downing, 152 Ky. 25; Smith v. Lewiston R. Co., 86 A. 1054 (Me.); Durose v. St. Paul Ry., 83 N.W. 397; Becker v. Albany Ry. Co., 5 Am. Neg. Rep., 231 (N.Y.) Cases cited; Collins v. City of Janesville, 83 N.W. 695 (Wis.); Hanley v. N. J. Ry. Co., 47, A. 445 (N. J.); Chapman v. S. P. Co., 12 Utah 30, 41 P. 551.

John G. Willis, for respondent.

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

OPINION

STRAUP, C. J.

This action was brought to recover damages for personal injuries. The complaint alleges, and the answer admits, that the defendant, at the time of the injury and the filing of the complaint, was a corporation owning and operating a street or interurban railway, and that the plaintiff, while a passenger for hire on one of its cars, was injured through a collision caused by the defendant's negligence. The only issue submitted to the jury was the extent of the injury and damage. The verdict was for $ 4,000. The defendant appeals.

But few questions are presented. After the jury was impaneled and the plaintiff about to proceed with his statement and evidence the defendant moved a substitution "of the name of the Ogden, Logan & Idaho Railway Company for that of the defendant," for the stated reason, that since "the bringing of this action the defendant and the Logan Rapid Transit Company," also a street or interurban railway corporation, consolidated or amalgamated under the name of the proposed substitution; and, in case of any question made as to such consolidation, offered to prove it by the articles of incorporation. The motion was denied. Complaint is made of the ruling. It is urged that by the consolidation all pending actions by or against the defendant abated. To support this, 10 Cyc. p. 310, is cited. But on the next page a contrary doctrine also is stated. We need not consider which of these views is the better, for, as we think, the statute (Comp. Laws 1907, Sections 340, 341), permitting consolidations of such corporations, provides that the constituent corporations are not relieved from their respective debts and liabilities, though the consolidated corporation is made responsible for the debts and liabilities of both. While it may be conceded that the plaintiff, by proper amendments and allegations, might have proceeded also against the consolidated corporation, or against it alone, yet it did not rest with the defendant, because of the consolidation, to seek a discharge of its liabilities or an abatement or dismissal of the action, or to compel the plaintiff to proceed against the consolidated corporation alone. With this view...