Van Wagoner v. Union Pac. R. Co.

By petition for rehearing the appellants challenge the opinion of this court rendered November 3, 1947. See 112 Utah 189,186 P.2d 293. We have carefully considered the questions raised by the petition, and adhere to the rules of law announced in the original decision.

Our attention has, however, been called to part of one sentence in the opinion which is apparently being cited as authority for a holding by this court on issues not involved in this case. So that there will be no misunderstanding as to whether or not our previous opinion was limited to the issues involved in this action, the last sentence on page 303 of 186 P.2d, continuing onto page 304, is deleted. This sentence reads as follows:

"* * * For the purposes of this suit, all that Section 104-3-11, U.C.A. 1943, grants to the heirs is a right to proceed against the wrongdoer subject to the defenses available against the deceased, had he lived and prosecuted the suit. * * *"

There is substituted for the deleted sentence the following statement:

"Under the facts of this case the right to proceed against the wrongdoer is subject to the defense of contributory negligence."

As so amended, the opinion stands and the petition for rehearing is denied.

McDONOUGH, C.J., and PRATT, WADE, and WOLFE, JJ., concur.