Wild v. Union Pac. R. Co.

Decision Date14 February 1901
CourtUtah Supreme Court
PartiesFRANCIS WILD, an Infant, by MATTHEW WILD, his Guardian, Respondent, v. UNION PACIFIC RAILROAD COMPANY, Appellant

Rehearing denied April 8, 1901.

Appeal from the Second District Court, Weber County.--Hon. H. H Rolapp, Judge.

Action for damages for personal injuries alleged to have been received through the negligence of defendant company. From a judgment for plaintiff defendant appealed.

AFFIRMED.

Le Grand Young, Esq., and A. W. Agee, Esq., for appellant.

We insist that there is an entire want of competent evidence to prove that the crossing in question was not in an ordinary safe condition.

In order to charge appellant with actionable negligence in respect to said crossing, it must have been shown by competent evidence that its condition was such that injury to persons using it in the way street crossings are usually and ordinarily used by the public, could have been reasonably anticipated as the natural and probable consequence of its condition, and that such danger could have been guarded against by use of ordinary care on part of appellant. This we say emphatically has not been done. Fritz v. Salt Lake etc., Co., 18 Utah 493; 56 P. Rep. 90; Titus v. Railroad Co., 136 Pa. St. 618.

Instructions should be based upon and be applicable to the theories contended for by the parties. People v. Saches, 24 Cal. 28; Pearson v. Dryden (Or.), 43 P. 166.

The rule established by an unbroken line of decisions in California, from which State our practice act was taken, is that, where the trial judge expresses dissatisfaction with the verdict and is of opinion that justice has not been done, he is bound to set aside the verdict and grant a new trial, even though there may be a conflict in the evidence. Hawkins v. Reichert, 28 Cal. 535-539; Dickey v. Davis, 39 Cal. 565-569; Domico v. Cassassa, 35 P. Rep. 1024; Sherman v. Mitchell, 46 Cal. 577; In re Carriger's Estate, 37 P. Rep. 785; Warner v. Dying Works, 38 Ibid., 961; People v. Lum Yit, 23 Ibid. 228; People v. Knutte, 44 Ibid. 166.

This court has emphatically declared that where the verdict is clearly against the weight of the evidence, the trial court should not hesitate to set aside the verdict and grant a new trial. Hopkins v. Ogden City, 5 Utah, 390.

Herbert R. MacMillan, Esq., for respondent.

This court will not examine into the sufficiency of the evidence. Temps Hall Ass'n v. Giles, 38 N. J. 260; McGrail v. Kalamazoo, 94 Mich. 52; Bauer v. Libbey, 78 Me. 321; 57 Am. Rep. 810, and note; Marvin v. New Bedford, 158 Mass. 464; Kidder v. Dunstable, 11 Gray, 342; Louisville R. Co. v. Com., 80 Ky. 143; Hays v. Greenville, 8 S.W. 494; Burt v. N.Y. C., 20 N.Y. 809; Hubbard v. R'y Co., 39 Me. 506; Hudson v. Chicago R'y, 59 Iowa 581; Dye v. Delaware R'y, 130 N.Y. 671; Weiler v. Manhattan R'y, 6 N.Y.S. 321; T. & H. P. Co. v. Cline, 38 P. 608; Towle v. P. Imp. Co., 33 P. 207; Burgess v. Davis S. O. Co., 42 N.E. 501.

Utah seems to follow the rulings of these courts, rather than those cited by appellant, on such evidence. Jenkins v. Hooper Irr. Co., 13 Utah 100; Sullivan v. Salt Lake, 13 Utah 132; Hurd v. U. P. R'y Co., 30 P. 92; Snowden v. P. V. C. Co., 16 Utah 366; Anderson v. Daly Min. Co., 15 Utah 22; Konold v. R. G. W. R'y Co., 60 P. 1024.

Appellant's exceptions to this instruction were as follows:

"The defendant excepts to instruction number 11, given by the court."

Such an exception is too general. It does not point out the particular word or phrase excepted to and does not, therefore, give the trial court a chance to correct the instruction, if wrong. This instruction could, if erroneous, have been very easily changed had appellant placed its finger on the objectionable word "or." This court has repeatedly held such an exception not to be good. Ganaway v. S. L. D., 17 Utah 41; People v. Thiede, 11 Utah 241; Pool v. S. P. Co., 20 Utah 210; 58 P. 327; Scott v. Utah C. Co., 18 Utah 486; 56 P. 305.

The court did not err in overruling the motion for nonsuit, because:

First. Fair-minded men might honestly differ on the facts or in other words all men of ordinary intelligence would not come to the same conclusion, in which case, this court has repeatedly held the case must go to the jury. Linden v. Anchor Co., 29 Utah 134; 58 P. 358.

Second. The motion was too general and did not specify the grounds for nonsuit. White v. R. G. W., 22 Utah 139; 61 P. 568; Lewis v. Silver King, 22 Utah 51, 61 P. 860; Frank v. Min. Co., 19 Utah 35; McIntyre v. Min. Co., 20 Utah 323, 60 P. 554.

These were all facts for the jury to decide and the jury having found for the plaintiff this court will not interfere. This court will only look into the evidence far enough to see if there is any evidence upon which to base the verdict and if so the verdict will stand. This court will not determine questions of fact. See cases hereinbefore cited and also: Connor v. Raddon, 16 Utah 418; Whittaker v. Ferguson, 16 Utah 243; Mangum v. Mining Co., 15 Utah 534; Nelson v. R. R. Co., 15 Utah 325; Anderson v. Mining Co., 15 Utah 126; Bacon v. Thornton, 16 Utah 138.

BASKIN, J. Bartch, J., dissents. Miner, C. J., concur.

OPINION

BASKIN, J.

Francis Wild, an infant of the age of twelve years, by Matthew Wild, his guardian, instituted this suit to recover damages alleged to have been received by him through the negligence of the defendant.

The answer denied the alleged negligence and alleged that the injury complained of was caused by the negligence of the said Francis Wild, and his wilful misconduct while wrongfully trespassing on the grounds and track of the defendant.

The jury returned a verdict in favor of the plaintiff for $ 4,000, but the trial court overruled the defendant's motion for a new trial on condition that the plaintiff remit from the amount of said verdict, all over the sum of $ 2,500, which was accordingly done, and a judgment for the latter amount was rendered in favor of plaintiff, with costs. From this final judgment the defendant has taken this appeal.

After the plaintiff rested the defendant made a motion for a nonsuit, on the following grounds:

"1. That the evidence adduced by plaintiff does not sustain the allegations of the complaint, nor any of them.

"2. That the evidence does not show any negligence on the part of the defendant either in the construction or maintenance of the crossing; and

"3. If it fails to show that the accident complained of was caused by the negligence, misconduct, omissions or commissions of the defendant."

After the motion was overruled, the plaintiff was allowed to recall the witness Naylor, who was re-examined and re-cross-examined at great length, and counsel for defendant recalled Mrs. Wild, one of plaintiff's witnesses, and re-cross-examined her.

After this additional testimony had been received, the motion for a nonsuit was not renewed. We can not consider said motion: 1st. Because it was too indefinite. White v. R. G. W. Ry. Co., 61 P. 568 (Utah); Lewis v. Silver King Min. Co., 61 P. 860 (Utah); McIntyre v. Ajax Min. Co., 20 Utah 323, 60 P. 552; Frank v. Bullion Beck Min. Co., 19 Utah 35, 56 P. 419. 2d. Because the motion was not renewed after said additional testimony was given.

Upon the close of the testimony the defendant requested the court to instruct the jury to return a verdict for the defendant, and one of the grounds of the motion for a new trial was the insufficiency of the evidence to justify the verdict.

The bill of exceptions contains 608 pages of typewritten matter, and consists of the reporter's notes, the questions asked the witnesses and their answers, the side bar conversations and the remarks of the judge and counsel which occurred during the trial. In what purports to be the abstract, consisting of 171 pages, the bill of exceptions is presented in full. Such a bill does not conform to the requirements of section 3248, Revised Statutes 1898 (People v. Getty, 49 Cal. 581; Caldwell v. Parks, 50 Id. 502), and what purports to be an abstract is not such as rule 6 of this court requires.

Under the precedent of Caldwell v. Parks, supra, we would be justified in affirming the judgment without regard to the bill of exceptions, and will do so in all cases hereafter appealed, unless some fatal error which is not required to be shown by the bill of exceptions, appears upon the face of the record.

In actions at law the jury are the exclusive judges of the credibility of the witnesses, and the weight of the evidence. Haun v. R. G. W. Ry., 22 Utah 346, 62 P. 908. And as said by Justice BARTCH, in Whittaker v. Ferguson, 16 Utah 240, 51 P. 980, "We can, therefore, in cases at law (under sec. 9, art. 8, of the Constitution), examine the evidence only so far as may be necessary to determine the questions of law, and have nothing to do with the sufficiency of the evidence to justify the findings or judgment, unless there is no proof to support it." Anderson v. The Daly Min. Co., 15 Utah 22, 49 P. 126; Nelson v. Southern P. Co., 15 Utah 325, 49 P. 644; Mangum v. Bullion Beck & C. Co., 15 Utah 534, 50 P. 834; Linden v. Anchor Min. Co., 20 Utah 134, 148, 58 P. 355.

The evidence introduced by the plaintiff tended to sustain his case, and...

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