Wild ex rel. Wild v. Union Pacific Railroad , 23 Utah 265 ( 1901 )

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 Pac. 568 (Utah); Lewis v. Silver King Min. Co., 61 Pac. 860 (Utah) ; McIntyre v. Ajax Min. Co., 20 Utah, 323; Frank v. Bullion Beck Min. Co., 19 Utah, 35. 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 wbat purports to be an abstract is not such as rule 6 of this court requires.

Under the precedent of Caldwell v. Parks, supra, we w'ould 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 Pac. 908. And as said by Justice Bartch, in Whittaker v. Ferguson, 16 Utah, 240, “We can, therefore, in eases 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; Nelson v. Southern Pac. Co., 15 Utah, 325; Mangum v. Bullion Beck & C. Co., 15 Utah, 534; Linden v. Anchor Min. Co., 20 Utah, 134, 148.

The evidence introduced by the plaintiff tended to sustain his case, and the issues between the parties were therefore properly submitted to the jury, and their verdict under the rule formerly established by the foregoing decisions, can not be disturbed on the ground of the insufficiency of the evidence.

A general exception was taken to the second instruction, as also to the seventh. Each of these instructions contain independent propositions, some of which. are undoubtedly correct. Such general exceptions, as has been frequently decided by this court, can not be considered. Pool v. Southern Pac. Co., 20 Utah, 210; Scott v. Min. & Mill. Co., 18 Utah, 486; Wilson v. Sioux Con. Min. Co., 16 Utah, 393; Ganaway v. S. L. Dramatic Assn., 17 Utah, 41.

The defendant introduced evidence showing that the plaintiff, on the morning of the day that the accident occurred, but sometime previous thereto, had been climbing and riding upon the cars of defendant.

The fifth instruction, to which objection is made, is as follows: “If you find from the evidence that the plaintiff was climbing the cars on the morning in question, but find that at the time he was injured he was not riding upon or climbing said cars, or attempting to do so, but was injured in the manner as testified to by plaintiff by getting his foot caught in said crossing, then I charge you that the fact that plaintiff was riding upon or climbing said cars, or attempting to do so, before the accident occurred, does not affect his right to recover.”

This instruction was properly given.

The foregoing objections are the principal ones presented by the brief of appellant’s counsel. The others are not of such importance as to require special notice, and are untenable.

It is ordered that the judgment of the court below be affirmed, at the cost of the appellant.

Bartch, J., dissents.

After an examination, I find no error in the record of sufficient importance to justify a reversal of the case. I concur in the order affirming the judgment.

Miner, O. J.