Derrick v. Salt Lake & Ogden Ry. Co.

McCARTY, J. (after stating the facts as above). The alleged acts of negligence upon which respondent bases his right to recover are summarized in his complaint as follows: “(a) In running said train as it approached said crossing and onto said crossing at a high and dangerous rate of speed, to wit, at the rate of at least thirty-five miles per hour. “ (b) In not giving'any warning or signal of the approach of said train to said crossing, either by bell or whistle or otherwise, until said train was almost upon said crossing and plaintiff was in a position of peril and it was impossible for either plaintiff or defendant to avoid a collision. “(e) In not having said train under control so that the same could be stopped in time to avoid a collision when plaintiff was discovered or seen by defendant in a position of peril on or near said crossing. “(d) In running said train at a rate of speed in excess of that fixed by the ordinance of Farmington city. ’ ’ The company denied the alleged negligence pleaded in the complaint and, as an affirmative defense, pleaded contributory negligencé on the part of plaintiff and Merritt. When plaintiff’s evidence was in and he had rested his case in chief, the company moved the court for a nonsuit on the ground that the evidence failed to show negligence in any of the particulars enumerated in the complaint. The court sustained the motion in part and denied it in part. In ruling on the motion the court said: “The motion will be granted as to paragraphs (a) and (b) above mentioned, but the court will submit the other two allegations of negligence’ to the jury, and the motion will be denied for that reason. ’ ’ The allegations of negligence in paragraphs (a) and (b) were thus as completely eliminated from consideration as they would be if the court had stricken them. Neither the evidence produced by the company nor that introduced by the plaintiff in rebuttal tended in any way to show that the company was [579] negligent in any of the particulars enumerated in paragraphs (a) and (b) of the complaint. The court, nevertheless, submitted the issues presented by paragraphs (a) and (b) and the company’s answer thereto to the jury. The court, after stating the issues presented by the pleadings, charged the 'jury, in part, as follows: “If you believe from a preponderance of the evidence that the injury occurred as alleged in the complaint at a crossing where a highway crosses the defendant’s railroad, and that the defendant did not give any warning of the approach of the train which collided with the plaintiff and the automobile in which he was riding, or did not give any warning of its approach in time to enable the plaintiff to avail himself of it, that would be negligence upon the part of the defendant. ’ ’ 1 The company excepted to this instruction and assigns the giving of it as error. Counsel, with much earnestness, contend that the giving of the instruction was prejudicial error. In the course of the printed argument they say: “The defendant was induced to rely [which it had a right to do] upon the court’s ruling and could not anticipate that the court was, nevertheless, going to instruct the jury that the very grounds of negligence which he expressly stated would be withdrawn from the jury, were nevertheless grounds of negligence which they might consider. ’ ’ The court, by granting the motion for a nonsuit as to paragraphs (a) and (b) of plaintiff’s complaint, in effect, held that the negligence alleged in those paragraphs was not sustained by evidence. The defendant, therefore, was not required to introduce evidence to refute these allegations-They were, as we have stated, in effect, eliminated from the case. The court therefore erred in charging the jury in relation to them. 2 Defendant requested the court to submit to the jury by proper instructions the question of whether or not there was an understanding between Merritt, the owner and driver of the automobile, and the plaintiff, that “they were to jointly bear the expense of the automobile trip,” etc., [580] and if the jury should find from the evidence that there was such understanding between them, the negligence, if any, of Merritt, in driving the automobile at the time of and immediately prior to the accident, would be attributed to plaintiff. The court refused to so instruct the jury, but charged them on the theory that the relation of carrier and passenger existed between Merritt and the plaintiff. This was error. The undisputed evidence shows that the automobile trip was a joint affair in which Merritt and plaintiff were mutually and equally interested, and in which their rights to direct and govern the conduct of each other in relation thereto were coextensive. Each had a voice and the right to be heard in regard to the details of the trip. Merritt testified that ‘'the arrangements were equal; that is, they were mutual among us all.” He further testified: “When we started we had agreed to take lots of time and not drive fast. We discussed this on the way out,” and that “it was clearly understood” that each would pay his share of the expenses of the trip. Plaintiff testified that costs of the trip included gasoline, , oil, tires, “wear and tear on the ear, and other expenses connected with the trip.” The contractual relations of plaintiff and his traveling companions were substantially the same as they would have been if they had jointly hired an automobile with which to make the trip, with the understanding that they would jointly pay the expenses and mutually and concurrently direct the journey and the details thereof. The trip was therefore a joint enterprise in which these parties had a community of interest and in which they all equally had a voice and a right to be heard respecting the details of the journey. Under these circumstances the negligence of Merritt in the management of the automobile at the time of the collision was imputed to plaintiff. 23 Cyc. 1015- We also invite attention to Atwood v. Railway Co., 44 Utah, 366, 140 Pac. 137, a case in which the question under consideration is involved and quite elaborately discussed. What is there said is reaffirmed by this court in Martindale v. O. S. L. R. Co., 48 Utah, 464, 160 Pac. 275. [581] Under the law applicable to the admitted facts defendant would have been entitled to have the jury instructed, if it had so requested, that if they should find that Merritt was negligent, such negligence, as a matter of law, would be imputed to plaintiff. The judgment is therefore reversed, and a new trial ordered. Costs to appellant. FRICK, C. J-, and CORFMAN, THURMAN, and GIDEON, JJ., concur.