Scott v. Provo City

45 P. 1005, 14 Utah 31, 1895 Utah LEXIS 32

• Court: Utah Supreme Court
• Decided: August 3, 1895
• Docket: No. 700
• Status: Published

Opinion

Zanjj, C. J.:

This action was brought to recover damages in consequence of an injury resulting, as alleged, from the negligence of the defendant. It appears from the evidence that the plaiutiff, Elizabeth Scott, while walking in a dark night upon a sidewalk of a street of defendant, stepped into a hole in the cover of a culvert, and received very serious injury. There was a conflict in the evidence as to whether the hole was in that part of the sidewalk most usually traveled, or a little to one side. It did not appear that any officer of tbe city upon whom the law imposed any duty with respect to the repair of sidewalks had actual knowledge of the defect, but the evidence was conflicting as to whether the covering of the culvert had been out of repair a sufficient length of time to authorize the inference that the officers of defendant would have known of it had they used reasonable diligence. It appears from the record that the jury resolved all questions upon conflicting evidence, as to essential facts, in favor of the plaintiffs, and returned a verdict for them in the sum of $1,000.

Defendant’s counsel allege: That the court erred in its charge to the jury.

First. In stating that the plaintiffs should establish each of the material allegations of the complaint by a preponderance of the evidence. That it should have stated those allegations, and should not have left the jurors to determine them for themselves. Statements, considered alone, often appear defective; when considered with others, appear sufficiently explicit. In commencing the charge, the court stated the material allegations of the complaint, and the admissions and denials of the answer. After that it was proper to refer to them in general terms.

Second. Appellant alleges that the court erred in charging the jury that it was the duty of the city to keep its streets and sidewalks over their entire length and breadth in good order and repair. This, when considered with other statements in the charge, informed the jury that it was the duty of defendant’s officers to whom the law commits the oversight and care of streets to use all reasonable diligence to keep its streets and sidewalks in a reasonably safe condition for persons using them with reasonable care. The jurors were informed that, in determining whether the city was negligent in allowing the culvert to remain out of repair, they should, with other facts mentioned, take into consideration whether the sidewalk was in a central position or in the outskirts, and the amount of travel over it.

Third. Appellant assigns as error the statement of the court to the jurors that they might consider whether or not it was a common occurrence for the culvert to be out of repair, and whether it had been frequently so since it was placed across the sidewalk. This evidence was offered as tending to prove notice, — evidence from which it might be inferred that the officers of the city did know of the defect, or that they should have known in the use of reasonable diligence. ,

Fourth. It is also alleged that the court erred in charging the jury that nine of them might find a verdict, and it is also alleged that the verdict was void, because it was not unanimous. This case was tried under the late territory of Utah, and this court, as well as the late supreme court of the territory, have decided the statute authorizing such a verdict valid, and we do not regard it as an open question in this court. We find no error in this record. The judgment appealed from is affirmed.

Bautch and Miner, JJ., concur.