Beggs v. Clayton

FRICK, C. J. Appellant brought this action to recover damages for personal injuries sustained by him through the alleged negligence of the respondent, by causing the appellant’s team of horses to be frightened and to run away upon a certain highway, by the careless management of an automobile owned by, and at the time of the accident, in the custody and control of, respondent. The material allegations of the complaint, respecting the alleged negligence of respondent, are as follows: “That at all times herein stated there was and now is a certain highway in Parley’s Canon, in Salt Lake County, Utah, extending from Salt Lake City, in Salt Lake County, in an easterly direction to and beyond Park City, in Summit County, Utah, and in many places, particularly in the place where the accident occurred, which is hereinafter mentioned, said highway is formed by what is known as a ‘dugway’ along — 391 — and' near tbe base of tbe bill forming one side of said' canyon; that on tbe 6tb day of September, 1909, plaintiff was traveling along said bigbway in an easterly direction, going from Salt Lake City aforesaid to Park City aforesaid, and was •driving a team of borses attached to a boggy, in wbicb be was riding, and was giving due and proper attention to his •said team; that while plaintiff was so traveling along said dugway constituting said bigbway, at a point in said Parley’s Canyon, in Salt Lake County aforesaid, where said dug-way was crooked and composed of many sharp turns and curves, and where tbe grade was very steep, and was narrow, tbe defendant was traversing tbe same in a certain automobile, then and there under tbe control and property of tbe defendant, in the opposite direction from that traveled by plaintiff; that upon appearance of said automobile within tbe view of plaintiff’s said team of borses, they became frightened and plainly appeared to be frightened, and acted in such a manner that any person of ordinary common sense could easily know that they were frightened, that they jumped sideways, shied, backed, put up their ears in a frightened manner, and at once began swerving from the road and attempting to back and turn, notwithstanding all plaintiff’s proper efforts to keep them on the road and headed towards ■said automobile; that the road was narrow, and there was no sufficient room for them to safely turn ; and that while plaintiff’s said team of horses was acting in said frightened manner, and so appearing to be frightened, said defendant willfully, unlawfully, and in violation of his duty in the premises negligently failed to stop and remain stationary so long as would be reasonable to allow plaintiff with his said team to pass, but negligently and unlawfully continued to advance, toward plaintiff’s said frightened team of horses with the ■said automobile, thereby frightening and terrorizing said team beyond plaintiff’s control, so that they became wholly unmanageable, and backed and turned sharply in the opposite direction, and overturned plaintiff’s said buggy and threw him violently to the ground and dragged hims with — 392 — said buggy along the ground, thereby rendering plaintiff unconscious.” In the answer respondent apparently admitted many of tbe allegations of the complaint, but, in making such admissions, stated the occurrence in his own language; instead of admitting the allegations as appellant had stated them to be. •With regard to the allegations of negligence, respondent admitted' that appellant “was driving a team of horses attached to a buggy, in which he was riding; that while plaintiff was traveling, as aforesaid, along the said highway, at a point in Parley’s Canyon, in Salt Lake County, Utah, where said highway was crooked and composed of many sharp turns and curves, and where the road was narrow, defendant was traveling the same highway in a certain automobile, then and there under defendant’s control and being the property of defendant, in the opposite direction from that traveled by plaintiff; that upon the appearance of said automobile the plaintiff’s said team of horses became frightened and backed and ‘put up their ears in a frightened manner,’ and attempted to back and turn; that the road being narrow there was not sufficient room for the team to turn; that the said team backed and turned sharply in the opposite direction and threw plaintiff violently to the ground, and dragged him with said buggy along the ground.” The respondent, for further answer, denied each and every allegation not otherwise specifically denied, and, as an affirmative defense, averred that the injury and damages in question were occasioned by appellant’s own negligence. Upon these issues, the case was submitted to a jury, who returned a verdict in favor of respondent. Judgment was duly entered upon the verdict, and appellant prosecutes this appeal. „ The only errors assigned relate to the instructions of the court, and such as we deem material will be referred to hereafter. We remark that this appeal is upon the judgment roll, without a bill of exceptions; and hence the questions we can review are very narrow. — 393 — In charging the jury, the court practically copied into his charge the provisions of our statute regulating the speed, management, and control of automobiles while being operated upon the highways of this state. (Laws Utah, 1909, page 236.) In view that in what the court copied there were some matters which, strictly speaking, had no relation With the conditions under which the accident in question occurred, the appellant asserts that the court erred in including such irrelevant matters into the charge. In referring to this point, counsel, in their brief, say: “The learned trial court laid before the jury the law covering a number of cases, none of which was referred to by the pleadings and evidence in the case, and [the charge] was therefore well calculated to mislead the jury.” After carefully reading that portion of the law copied by the court in connection with the whole charge as given, we cannot see how the jury could have been misled. The court in other portions of the charge clearly defined the issues, and told the jury just what each of the parties was required to prove under the pleadings. Nor do we see wherein anything that the court copied, as aforesaid, was in any way contradictory of or in conflict with any other portion of the charge, when the whole charge is properly construed and applied. It is also contended that the court erred in charging the jury as follows: “If the condition of the road, its narrowness, or other physical conditions, are such as to make it difficult to determine what the duty of the person is, in order to comply with these two sections of the statute, then a 1 person upon whom the obligations rest to comply with them must honestly exercise his best judgment according to the circumstances as they appear, and if, in endeavoring to do so, he acts as a reasonable person of ordinary prudence would do under such conditions, then he cannot be held responsible for the consequences.” A mere reading of the instruction shows that it relates to some conditions namied in the statute, all of which the court had copied in full. Some of the- conditions referred — 394 — to a reasonable time; others, again, referred to what is termed a “fair and equal opportunity to pass” each other on the highway; and still another requires a motor vehicle to “reasonably turn” to the right and give a team one-half of the right of way. We think no argument is required to show that under such provisions, where no act is per se pronounced negligence, and where an action, as here, is grounded upon negligence, all the court can do is to submit the evidence adduced by both sides, upon the question of negligence, to the jury. If the one who is charged with negligence nevertheless acted reasonably, in view of all the conditions surrounding the parties, as these conditions are outlined in the statute, he is not, and cannot under the statute, be deemed guilty of actionable negligence. If 'die statute had provided that a particular act, or the omission of some definite act, shall constitute negligence, the case might be different. The statute, however, does not condemn the mere act, but it condemns the act only when it is unreasonable; or, expressing it in another form, what is or is not negligence must be submitted to the jury, to be determined from all the evidence in the case. We are of the opinion that counsel’s contention in this regard cannot be sustained. Appellant also contends that the court erred in modifying his requests, marked “1” and “2.” The court, in substance, gave both requests, modifying them only in certain particulars. To make a comparison available for any purpose, wé would have to copy both requests as tendered and as modified. It could subserve no useful purpose to do so. It must be sufficient, therefore, to say that, in our opinion, the court committed no error in modifying the requests. It is further urged that the court erred in defining the burden of proof. Upon this subject, the court, in substance, charged the jury that the burden of proof rested upon the appellant with regard to the allegations of negligence, 2 and that by a preponderance of the evidence “he must prove that the defendant was negligent in some respect as alleged in the complaint,” and, if the jury find that he should recover, then they must also' find from the — 395 — evidence the. amount of damages in accordance with other portions af the charge. The court then concluded the charge as follows: “If, upon any of these issues, you find that the evidence is equally balanced, or that the preponderance is in favor of the defendant, then you must find such issue for the defendant.” It is the concluding portion which we have quoted that is excepted to. Counsel say: “The last sentence of paragraph ten of the instructions, while probably technically correct, if it were combined with the previous portion of the paragraph by means of a comma or semicolon, standing alone in a separate sentence, and containing as it does the word ‘any,’ which might extend the burden to the whole case, it is erroneous.” We have quoted counsel’s argument in full for the sole purpose of showing that, in view of the language used by the court, regardless of punctuation, the word “any” cannot be applied generally, but must be' limited to “these” (the foregoing two) issues, to which specific reference is made. There is therefore no parallel between the charge just referred to and the one considered by this court in Ainsfield Co. v. Rasmussen, 30 Utah, 453, 85 Pac. 1002. The contention that the charge of the court covered uncontested issues may or may not be well founded. So far as this contention relates to the pleadings, however, we cannot agree with counsel that the charge of the court related to matters admitted by the answer. Moreover, 3 in view of what we have already said regarding instruction No. 6, this objection is robbed of much of its force. As we have seen, what are .termed “admissions” in the answer consist merely of stating the occurrence of the accident in the language of counsel for defendant. When’ this statement is followed in the answer, as it is, by a general denial, it amounted to a complete denial of appellant’s version of the accident, unless the same were admitted at the trial — a fact which is not made apparent by the record'. — 396 — We can discover no reversible error in. the record, and the judgment is therefore affirmed, with costs to respondent. McCARTY and STRAUP, JJ., concur.