Nelson v. Salt Lake Rapid Transit Co.

MINER, J.: The plaintiff brings this action to recover damages .alleged to have accrued to him by reason of having been •ejected from the cars of the defendant without cause. It ■appears from the plaintiff’s testimony that he was a pas■senger on the defendant’s cars' on the night of October 1, Í891, and was returning to the city from one of the outlying districts in Salt Lake City, with a large amount of money on his person and in a satchel he carried. He had jpaid his fare, and testified that he had a cigar in his mouth, but it was not lighted. He was not smoking on the car. That he afterwards held the cigar in his hand, but it was not lighted. The conductor received his fare, .and afterwards told him he must cease smoking, or get [198] off the car. The plaintiff replied that he was not smoking. After a short time the conductor returned, and said to plaintiff, “ I told you to quit smoking.” Plaintiff replied that he was not smoking, whereupon the conductor ordered him off the car, and then took hold of his shoulder and gave him a jerk, and his satchel slipped off. Plaintiff grabbed the satchel, and again the conductor grabbed plaintiff. The conductor was told that he had money in his satchel, and had sent his horses into town, and he rode on the car for protection. Plaintiff also states that he desired to ride on the outside platform, but was refused this permission. Plaintiff was put off the car about three miles from the-central part of the city, and was obliged to walk to the city, with the money upon him, gn a dark night. He also states that he was frightened when he was put off the-car; was afraid he would lose the money, or be robbed of it; that he had been drinking that day, but was not intoxicated. The place where he was put off was not. lighted by the city. Other testimony was offered by the-plaintiff, tending to corroborate his testimony. Mr. Carpenter testified that plaintiff had a cigar in his hand, with ashes on it, but no smoke came from the cigar. The-defendant offered the testimony of several witnesses, tending to show that plaintiff was smoking in the car, and also that he had been drinking to excess. The case was-argued before the jury, and a verdict rendered for the plaintiff for $100. The defendant assigns as error that, the plaintiff was violating a rule of the company by smoking in the cars, and that a clear preponderance of the evidence shows that plaintiff was smoking in the car, in violation of the rules of the company, and against the request of the conductor not to smoke, and that the damages are excessive. We are satisfied from the whole record that there was a clear conflict in the testimony. The [199] plaintiff testifies, and is corroborated by one witness, tbat be was not smoking while in the car, while several witnesses on the part of the defendant testify he was smoking in the car. The testimony raises a question of fact that could only be passed upon by the jury. Under our statute, the jury are the judges of the facts, the credibility of the witnesses, and of the weight of the evidence. Our statute requires this instruction ro be given to the jury. Comp-Laws 1888, §§ 3361, 3876, 5035.- This court will not disturb a verdict merely because the evidence is conflicting,, or because the court, looking at the testimony as written,, would come to a different conclusion than that reached! by the jury, who had the witnesses before them. This has been the uniform ruling in this court. Farr v. Griffith, 9 Utah, 416, 35 Pac. 506; Pratt v. Clawson, 7 Utah, 254, 26 Pac. 300; Hayne New Trials, & App. § 288; Seley v. Southern Pac. Co., 6 Utah, 319, 23 Pac. 751; Mining Co. v. Haws, 7 Utah, 515, 27 Pac. 695; Wells v. Wells, 7 Utah, 68, 24 Pac. 752; Toponce v. Stock Co., 6 Utah, 439, 24 Pac. 534; Trihay v. Mining Co., 4 Utah, 480, 11 Pac. 612; Cunningham v. Railway Co., 4 Utah, 211, 7 Pac. 795; Bowers v. Railroad Co., 4 Utah, 225, 7 Pac. 251; Wilkinson v. Pratt, 32 Cal. 104. The court below saw the witnesses, and heard the testimony, and refused to> grant a new trial. We can see no reason for disturbing the judgment, either because there was insufficiency of' evidence to support it or because it was excessive. The case was properly submitted to the jury, and their findings should not be disturbed. The judgment of the court below is affirmed. Merritt, O. J., and- Bartch and Smith, JJ., concur.