Burt v. Utah Light & Power Co.

HAET, District Judge (after stating the foregoing facts). — This being a law case, and there being competent evidence to sustain the verdict, this court will 1, 2 not examine the testimony to ascertain upon which side is the preponderance. Neither is the court authorized to review the evidence to determine whether, or not, the damages are excessive. This court has heretofore frequently held that under section 9, article 8, Constitution Utah, the Supreme Court is not authorized to review the facts in a case at law, except so far as may he necessary to determine questions of law. Anderson v. Min. Co., 15 Utah 22, 49 Pac. 126; Nelson v. So. Pac. Co., 15 Utah 328, 49 Pac. 644; Mangum v. Bullion, etc., Min. Co., 15 Utah 534, 50 Pac. 834; Whittaker v. Ferguson, 16 Utah 240, 51 Pac. 980; Murray v. Salt Lake City R. Co., 16 Utah 356, 52 Pac. 596; Wild v. Union Pac. R. Co., 23 Utah 265, 63 Pac. 886; Kennedy v. Railroad Co., 18 Utah 325, 54 Pac. 988; Croco v. Railroad Co., 18 Utah 311, 54 Pac. 985, 44 L. R. A. 285; Braegger v. Oregon Short Line R. Co., 24 Utah 391, 68 Pac. 140. Appellant assigns error in the refusal of the court 3 to give certain instructions requested, and the giving of other instructions; hut as the record fails to show that exceptions were taken either to the refusal of requests or the giving of instructions, we cannot consider the merits of such instructions. Defendant objected to a question on behalf of 4 plaintiff as to the condition of the road at point in question a week or ten days prior to the accident. The purpose of this line of testimony was stated by plaintiff’s counsel to be to show that the condition of the road was substantially the same for some days before the accident — as tending to show notice to defendant. The court overruled the objection, and an exception for defendant was'noted; but, before the question was ans [162] wered upon its merits, defendant’s counsel said: “If your honor please, I am going to raise the objection once more; and I ask the privilege, if they don’t connect this, that my motion to strike out will be granted.” To which plaintiff’s counsel replied: “I have no objection to it being renewed at that time, if we don’t connect it, Judge.” The court thereupon remarked: ‘ ‘ Yery well. That may be the understanding. ’ ’ Other testimony was introduced by plaintiff, tending to show that the road in question was in the same dangerous condition for several days prior to the injury, as a result of water flowing uporf the road from defendant’s pipe line. Irrespective of the question whether the defense did not waive its objection by failure to after-wards challenge the sufficiency of the proof as showing or tending to show that conditions remained the same for some days prior to the accident, we are of the opinion that such proof was admissible as showing time and opportunity to the defendant to discover and remedy the dangerous condition of the road. Complaint is also made that testimony as to the 5 condition of the road in question the day after the accident was permitted to remain in the record over the defendant’s motion to strike out. In addition to the manner of raising the question by motion to strike out, instead of objection before the testimony was taken, there is evidence that these conditions were the same on the day of the accident as the day after. Defendant excepts to the refusal of the court to 6 permit it to show, after the leak in the pipe or condhit was discovered, what efforts were made to check the break and remedy it, the obstacles it had to meet, and also the difficulty of the original construction, and the skill required therefor. In this connection, it should be noted that the complaint does not directly charge negligence, but the wrong of causing large quantities of water to flow upon the public highway in question. Granting that there was no wrong or negligence in the original construction of the pipe or tunnel conduit, if [163] defendant chose to continue for weeks to rnn water down its pipe and permit it to escape upon the highway to the danger of the traveling public, it did so at its own hazard. It is not a question of the care and skill used in the original construction, but whether defendant permitted its water to flow upon the highway at such a season of the year when the natural and probable results would be the formation of. ice, and the creation of a dangerous condition to travelers. Defendant also sought to show the condition of the 7 canon road all the way up and down for ten days or two weeks prior to .the accident and for a week afterwards. Upon plaintiff’s objection, the court ruled that the testimony should be confined to’ the vicinity of the .accident. The only issue in this respect was whether the condition of the ice at the place of the accident had been caused by water from defendant’s pipe or from natural causes. Defendant was entitled to show, if he could, that the ice formed at the place of the accident was from rain or snow, and not from water from its pipe line. "While greater latitude might have been extended properly to the defendant as to this line of inquiry, yet the scope of the examination as proposed by the defendant would seem to be unnecessarily broad, and we are unable to say that the defense was materially prejudiced by being confined to the vicinity of the accident. Of course, it must have been evident to the jury that there was a general condition of snow or ice upon the canon road, otherwise the sleigh would not have been in use; but, in order for the condition of any other part of the road to have been helpful in determining the question at issue, natural conditions, such as the grade of the road, and its position on the side of the mountain, with reference to sunshine and winds, would all have to be shown. We are unable to say that defendant was prevented from showing anything which would have materially assisted in proving the cause or causes of the condition of the road at the place in controversy. ' [164] Appellant also complains at not being allowed to 8 show an arrangement between the county commissioners (who had control of the road) and the defendant in regard to the care of the road. The question on the point asked the county commissioner, which the court would not permit to be answered, is as follows: “Q. Was there any arrangement between you and the ‘power people’ in regard to the operation of the plant— the keeping of the water in the pipe — and that the county would take, care of the water in the road?” The trial court correctly ruled that the county commissioners had no right to authorize the existence of a nuisance upon the highway to the detriment of any one else. It had already been shown in evidence what work had actually been done by the county at the place of the accident. There are some other errors assigned by appellant, but we do not deem a particular discussion of them necessary, on account either of the insufficiency of the objection or exception, or the harmless nature of the testimony. As we find no reversible error in the record, it is ordered that the judgment and verdict of the trial court be affirmed, with costs. BASKIN, C. J., and BARTCH, J., concur.