Olson v. Oregon Short Line Railroad

MINER, O. T., after stating the facts, delivered the opinion of the court: The respondents have filed a, motion to strike from the record the bill of exceptions and abstract in this case on the ground that the bill was not settled, allowed, signed, and 1 filed within ninety days after the ent^y of judgment, or notice thereof, after the determination of the motion -for a new trial, as provided by section 3286, Revised Statutes — 466 — 1898. It is conceded that it was not settled within the ninety days allowed by the above section, but it is contended that the trial court extended the time for such settlement beyond the ninety days, in accordance with the practice and laws of the State. Section 3286, Eevised Statutes 1898, so fax .as we now deem it material, reads as follows: “ A. bill of exceptions shall in all cases be prepared, settled, signed, and filed within ninety days after the entry of judgment, or after notice of the same if the action were tried without a jury, or after the determination of a motion for a new trial.” If this and other provisions of the statute contained no limitation that would affect the clause quoted, the respondents5 contention might be considered tenable; but when we refer to other parts of the section we find that the appealing party has thirty days after judgment, or the determination of the motion denying a new trial, in which to prepare and serve the bill of exceptions. The opposite party has ten days thereafter in which to prepare and serve amendments thereto. The bill and amendments must within ten days thereafter be presented to the judge, upon five days’ notice, or by delivery to the clerk, for the judge, for settlement. When received by the clerk, he must immediately deliver them to the judge, if he be in the county. If he be absent from the county, and either party desires the papers to be forwarded to the judge, the clerk must, upon notice in writing from such party, immediately forward them to the judge by mail, or other safe channel. If not thus forwarded, the clerk must deliver them to the judge immediately after his return to the county. When received the judge fixes the time for settlement, and the parties are to be notified. Under this section it will be readily observed that if the judge is absent from the county on business pertaining to his office in his district for any considerable length of time, or if the papers are not'mailed, or he does not receive the papers, or becomes sick, the bill may not be settled within the ninety days allowed by this section. Section 3329, Revised Statutes 1898, — 467 — reads as follows: “When an act to be done as provided in this Code relates to tbe pleadings in tbe action, or tbe undertakings to be filed, or tbe justification of sureties, or tbe preparation of bills of exception or of amendments thereto, or to tbe service of notices other than of appeal, tbe time allowed by this Code may be extended, upon good cause shown, by tbe court in which tbe action is pending, or a judge thereof.” This provision is contained in a distinct, separate section, and authorizes tbe judge to extend tbe time for tbe preparation of bills of exceptions, without any limitation of time; and, if proper cause exists, such time may be extended beyond tbe ninety days referred to in tbe section first quoted — that is, tbe time allowed by tbe act for tbe preparation of bills of exception, or of amendments thereto, may be extended.by tbe judge, upon good cause shown. This construction is in conformity with section 2489, providing that proceedings under tbe statute shall be liberally construed, with a view to effect tbe object of tbe statute and promote justice. In this view of tbe case, tbe provisions of tbe statute referred to may be construed as directory, and tbe motion should be denied. Gorringe v. Read (decided at present term of this court), 24 Utah 455, 68 Pac. 147. 2. Tbe appellant contends that tbe court erred in permitting tbe testimony to be given with reference to tbe speed of tbe train at a public crossing. Tbe objection to tbe 2 admission of this testimony was too general. No specific ground of objection was stated to tbe court. This was not sufficient. 8 Enc. PL and Prac., 218, 219; 3 Jones, Ev., sec. 896; Snowden v. Coal Co., 16 Utah 372, 52 Pac. 599; Culmer v. Clift, 14 Utah 291, 47 Pac. 85; Crocker v. Carpenter, 98 Cal. 418, 33 Pac. 271. Tbe general rule to tbe effect that tbe objection must be specific is subject to tbe exception that, if tbe evidence is clearly inadmissible for any purpose, a general objection will be sufficient; but tbe evidence was not clearly inadmissible, under this exception to tbe rule. — 468 — Snowden v. Coal Co., 16 Utah 366, 52 Pac. 599. Treating tbe question upon tbe merits, we are satisfied that tbe 3 testimony was properly admitted. It will be remembered that tbe injury complained of occurred at a public crossing where over one hundred teams passed daily. Many bouses where people resided were built along tbe road near it, and tbe engineer knew it to be a public thoroughfare, and that it was used extensively. Tbe train bad tbe right of way, but tbe engineer was bound to give due and timely warning of its approach, so that passing teams might stop and allow it to pass. Tbe warning required to be given may not be due and timely if tbe speed of tbe train is such as to render tbe warning unavailing to passing teams. A speed of fifty miles an hour might not be unreasonable under some circumstances. Under others it might be dangerous thus to use tbe crossing. This would depend upon tbe warning given and the speed of tbe train. This speed at such a crossing as this one was shown to be should not be so great as to render useless tbe warning of tbe whistle and bell. Especially is this so when it appears, as in this case, that tbe accident occurred on a dark night, when a heavy wind and snow storm was in progress, which might prevent pedestrians from hearing the warning, and intervening trees and willows might prevent the train from being seen. The character of the crossing was an important circumstance to be taken into consideration in determining what rate of speed would be reasonable. The defendant was bound to use reasonable care to see that the train passed at a reasonable rate of speed, proportionate to the danger. The care should be measured by the apparent danger. A high rate of speed might be allowable in country districts where the crossings were not extensively used; but the same rate of speed might be dangerous to life and property in thickly inhabited country districts, and at public crossings where hundreds of teams are passing daily. The degree of care to be used’ by both parties was such as a prudent man — 469 — would exercise, under the circumstances of the case, in endeavoring fairly to perform his duty. As was said by Mr. Justice Bradley in Improvement Co. v. Steed, 95 U. S. 161, 24 L. Ed. 403: “The train has the preference and right of way, but it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. It can not be such if the speed of» the train is so great as to render it unavailing. The speed of a train at a crossing should not be so great as to render unavailing the warning of its whistle and bell; and this caution is especially applicable when their sound is obstructed by winds or other noise, and when intervening objects prevent those who are approaching the railroad from seeing a coming train. In such cases, if an un-slackened speed is desirable, watchmen should be stationed at the crossing.” In Ellis v. Railroad Co., 138 Pa. 506, 21 Atl. 140, 21 Am. St. Rep. 914, the court said: “In other words, negligence is the absence of care according to the circumstances, and must be measured by the apparent danger. While a high rate of speed is allowable, and perhaps necessary, in rural districts, the same rate of speed might be attended with peril to life in more thickly populated sections and at dangerous crossings.” Railroad Co. v. Miller, 39 C. C. A. 642, 99 Red. 529; Hicks v. Railway Co., 164 Mass. 424, 41 N. E. 721, 49 Am. St. Rep. 471. 3. Under objection, in answer to a hypothetical question, a witness for the plaintiffs was permitted to state his opinion of the grade of the track at and below the place where the colisión occurred, the distance an object could be seen 4 in front of the headlight, and the distance within which the train could be stopped. The witness was experienced in railroad business, had been an engineer for a considerable time prior to the accident, and knew the engine, train, head — 470 — light, and surroundings, and was familiar with the track and grade in question. He stated that it would be about a twelve foot grade from the lower crossing to the crossing where the injury occurred, and that by means of the headlight the engineer could have seen Olson’s wagon 450 or 500 feet ahead of the engine, had he been on the lookout. We are of the opinion that the testimony was proper. The witness was shown to be competent, and testified as an expert. The judge exercised a discretionary power in admitting the testimony, and his decision will not be reversed on appeal except a clear case of abuse of discretion is shown. Wright v. Southern Pac. Co., 15 Utah 424, 49 Pac. 309; State v. Webb, 18 Utah 450, 56 Pac. 159; Konold v. Railway Co., 21 Utah 379, 60 Pac. 1021; 12 Am. and Eng. Enc. Law (2 Ed.), 423. 4. At the conclusion of the plaintiffs’ testimony the defendant moved the court for a judgment of nonsuit against the plaintiffs for the reason, among others, that the testimony shows that the plaintiffs’ intestate was guilty of gross negligence, and that no negligence was shown on the part of 5 the defendant, and claims that there was no evidence to justify the court in overruling the motion for a nonsuit. This motion is met by the objection from the plaintiffs that the bill of exceptions does not contain, or purport to contain, all the evidence upon the trial, and therefore the court should decline to consider the error assigned. This contention on the part of the plaintiffs is sustained by repeated decisions of this court, and by the weight of authority. In Mining Co. v. Gisborn, 21 Utah 68, 59 Pac. 518, this court held that, where a bill of exceptions does not purport to set forth the substance of all of the evidence adduced at the trial upon the points in issue, it will be presumed upon appeal that there was sufficient proof to support the findings and decision of the trial court. In Cochrane v. Bussche, 7 Utah 233, 26 Pac. 294, it was held that, “where the record on appeal from an order dissolving an attachment does not show all the evidence upon which the — 471 — action of the trial court was based, it will be presumed that the lower court acted upon sufficient evidence.” The same doctrine is held in Culmer v. Caine, 22 Utah 216, 61 Pac. 1008; Snyder v. Emerson, 19 Utah 321, 57 Pac. 300; Warner v. Association, 8 Utah 431, 32 Pac. 696; Railroad Co. v. Lorentzen, 24 C. C. A. 592, 79 Fed. 291; Association v. Robinson, 20 C. C. A. 262, 74 Fed. 10; Alridge v. Alridge, 120 N. Y. 614, 24 N. E. 1022; James v. Dexter, 113 Ill. 654; Wood v. Railway Co., 49 Mich. 370, 13 N. W. 779; Beatty v. O’Connor, 106 Ind. 81, 5 N. E. 880; Antisdel v. Railway Co., 26 Wis. 145, 7 Am. Rep. 44; McLain v. Morse, 42 Neb. 52, 60 N. W. 334; State v. Strohbehn, 96 Iowa 339, 65 N. W. 304; Railway Co. v. Amos, 54 Ark. 159, 15 S. W. 362; White Pine Co. v. Herrick, 19 Nev. 311; 10 Pac. 215; People v. Williams, 45 Cal. 25. The general rule is held to be that while a moving party is required to set forth so much of the evidence, and no more, or the substance of the evidence, as may be necessary to explain or sustain the point specified in his bill of exceptions, he is not required to set forth all the evidence in full. In the present case this court is asked to find that there was no evidence in the case to sustain the decision of the court, without knowing what the evidence was. The bill of exceptions in this case does not purport to give all the evidence, nor even the substance of all the evidence, bearing upon the question raised in the motion for a nonsuit. The presumption, therefore, would be that there was evidence to justify the ruling of the court. But if we consider this question upon the merits, we are satisfied that no error was committed by the trial court in overruling .the motion 6 for a nonsuit. The evidence of plaintiffs was of such a character that the court could not say that the defendant was not guilty of the negligence that caused the injury. When a nonsuit is requested it is the duty of the court to assume as true all facts which could be properly found by the jury from all the evidence, and before the court can grant a nonsuit it — 472 — must appear that the plaintiff has failed to make out a prima facie ease. As held in Reese v. Mining Co., 15 Utah 460, 49 Pac. 824: “When a given state of facts is such that reasonable men might fairly differ upon the question as to whether there was contributory negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusions from them that the question of contributory negligence is ever considered one of law for the court.” This general rule so often laid down by this court follows the case of Railroad Co. v. Ives, 144 U. S. 428, 12 Sup. Ct. 679, 36 L. Ed. 485, apd should always be kept in mind when considering this question. Wines v. Railway Co., 9 Utah 232, 33 Pac. 1042; Lowe v. Salt Lake City, 13 Utah 91, 44 Pac. 1050, 57 Am. St. Rep. 708; Dederichs v. Railway Co., 13 Utah 34, 44 Pac. 649; Saunders v. Southern Pac. Co., 13 Utah 275, 44 Pac. 932. 5. Exception was taken to the refusal of the court to sustain the general objection made by the defendant to questions' put to Mrs. Taylor upon cross-examination. The 7 questions propounded had a tendency to show the interest or bias of the witness, and under the circumstances it was not prejudicial error to permit the witness to answer them. Neither do we find any reversible error in the ruling of the court in allowing a question to Mrs. Dabb as to conversations she had with the witness Taylor about the manner in 8 which trains passed over the crossing, and also concerning the blowing of the whistle. She stated that she had a conversation with Mrs. Taylor, but what was said was ruled out because the attention of the witness was not called to the time, place, and circumstances of the conversation. The denial of Mrs. Taylor that she “heard two or three whistles, and then a crash,” was not allowed to be disputed by Mrs. Dabb. No prejudice could arise to the defendant from the fact that the question was allowed when the answer was rejected. "When propounding impeaching questions to a witness concerning — 473 — bis prior inconsistent statements to another, the time, 9 place, and circumstances should be stated with reasonable certainty, in order to allow a proper foundation for the questions. 3 Jones, Ev., sec.. 849; 1 Greenl. Ev. (16 Ed.), sec. 462. 6. Exception is taken to instruction No. 10, wherein the court told the jury: “If you find from the evidence that the crossing upon which the deceased was killed was-a public highway, and had been used as such for a long number 10 of years prior to the accident and if you further find that a large number of teams and persons passed over said crossing each day, and at all hours of the day, then I charge you that it was the duty of the engineer of the train, when approaching the crossing, to have been on the lookout for teams and persons on the crossing, or in such close proximity thereto as to be in danger of colliding with the train, then to use all reasonable care and diligence and make use of all the appliances at his command to have the train under control, and stop if necessary to avoid a collision with and injury to such team or persons; and if you further find that the engineer was negligent in not keeping such lookout, and in not discovering the peril of the deceased in time to have avoided the accident, and that he did or could have discovered him, and the peril he was in, in time to avoid the collision, if he had been on the lookout, then I charge you that the defendant is liable for the killing of Olson, and the plaintiffs are entitled to recover in this action.” This instruction should be considered and construed in connection with the other instructions bearing upon the whole subject. The seventh instruction reads as follows: “You are charged that it was the duty of the deceased, as he approached the said crossing just before the time of the accident which resulted in his death, to both listen for and look in the direction from which the train approached, to ascertain if any train was approaching, and it was his duty to continue to so listen and look until he had crossed said railroad. The — 474 — failure of the company, if it did, to ring the bell, sound its whistle, or give any alarm of its approach, did not relieve the deceased from the obligations to perform the said duty of listening and looking, and if the said deceased, as he approached said crossing, by the use of his senses of sight and hearing in looking and listening for the approach of the said train, could have discovered that it was approaching, and have avoided said collision, then the plaintiffs can not recover in this case.” The eighth instruction is as follows: “If without so looking and listening for an approaching train, a person attempts .to cross, a railroad track, and is injured by a passing train, his own careless conduct is deemed, in law, to have assisted in bringing about the injury, and he can not complain of the other party concerned in the transaction, even though such other party may have also been negligent.” It is contended that the tenth instruction omits the subject of contributory negligence. The charge, taken as a whole, fully covered the question of negligence on the part of the defendant, and contributory negligence on the part of the plaintiff. It is not always possible to cover all the questions arising in a case in one sentence or paragraph. It is sufficient if the whole charge, when taken and construed together, states the law fairly and correctly. As said in Hamer v. Bank, 9 Utah 220, 33 Pac. 941: “The mere omission in one part of the charge by the court of certain elements, though material, when they are substantially given in another part, will not be ground for reversing the judgment. On this point, Thompson, in his work on Trials (vol. 2, sec. 2407), states the law as follows: ‘The charge is entitled to a reasonable interpretation. It is construed as a whole, in the same connected way in which it was given, upon the presumption that the jury did not overlook any portion, but gave due weight to it as a whole; and this is so, although it consists of clauses originating with different counsel, and applicable to different phases of the evidence. If, when so construed, it presents the law fairly and correctly — 475 — to tbe jury, in a manner not calculated to mislead them, it will afford no ground for reversing the judgment, although some of its expressions, if standing alone, might be regarded as erroneous, or because there may be an apparent conflict between isolated sentences, or because its parts may be in some respects slightly repugnant to each other, or because some of them, taken abstractly, may have been erroneous.’ ” Anderson v. Mining Co., 16 Utah 38, 50 Pac. 815; State v. McCoy, 15 Utah 141, 49 Pac. 420; Reese v. Mining Co., 17 Utah 496, 54 Pac. 759. Exception is taken to the court’s instruction on the subject of damages and the admission of certain testimony. We have examined all these and other exceptions taken by the appellant, and find no reason for reversing the judgment of the court below, based upon any exception taken and argued or presented in the briefs of appellant’s counsel. The judgment of the district court is affirmed, with costs. BASKIN and BARTCH, JJ., concur.