No. 1892. Decided April 8, 1908 (95 Pac. 363).

1. CARRIERS-ACTION FOR INJURY TO PASSENGER-RES IPSA LOQUITUR. A recovery against a carrier under the rule res ipsa loquitur cannot be had by merely showing that an accident occurred and that an injury was sustained by a passenger, but it must further appear that the injury was caused by something which, at the time it occurred, was in the care, custody, or under the control of the carrier, or in some way connected with or related to his business in the transportation of passengers, and while there is no presumption that the particular things that caused the injury actually existed, if there is some competent evidence showing their existence and the occurrence of the accident caused by any one of them and the resulting injury, the law will presume that the accident was the result of the carrier's negligence, and the burden of proof is on it to show that it was not at fault.1

2. SAME-APPLICATION OF RULE RES IPSA LOQUITUR. The rule res ipsa loquitur applies to the operation of street cars and to all passengers alike whether injured while riding in a car or in getting on or off.

1 Dearden v. S. P., L. A. & S. L. R. Co. (33 Utah 147), 93 Pac. 271.

34 Utah-1

(1)

34

1

MIS

3. NEW TRIAL GROUNDS MISCONDUCT AFFECTING JURY CONDUCT OF PRESIDENT OF DEFENDANT CORPORATION. An affidavit supporting a motion for a new trial averred on information and belief that the president of defendant corporation was also the president, prophet, seer, and revelator of the Church of Jesus Christ of Latter-Day Saints, and at a secret priesthood meeting before the trial instructed his followers as to their duties if called upon to serve as jurors in cases against corporations, and especially street railway corporations, and stated that there were grafters seeking by trickery to obtain verdicts against corporations by means of damage suits, and that he regretted that Latter-Day Saints sitting as jurors had returned verdicts against corporations. The affidavit further averred that five of the jurors trying the case were members of the Church of Latter-Day Saints. It was not claimed that any of the jurors were present at the meeting or ever heard of what was alleged to have been said by the president of the church. Held, that the affidavit was insufficient, especially where the jurors assailed filed counter affidavits in which they denied knowledge of the alleged instructions by the president of the church, and alleged that they had never heard of them until informed of them by the affidavit, since in order to constitute misconduct which would affect a regularly returned verdict, it must in some way be made clearly apparent that the acts complained of reached the jurors or some of them.

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Personal injury action by Louisa B. Paul against the Salt Lake City Railroad Company. Judgment for defendant and plaintiff appeals.

AFFIRMED.

S. P. Armstrong for appellant.

P. L. Williams for respondent.

APPELLANT'S POINTS.

Failure to give proper instructions requested is ground for new trial. (Hayne, New Trial, secs. 120-124; People v. Hamilton, 4 Utah 263; People v. Chadwick, 7 Utah 134; Downey v. Gemini M. Co., 24 Utah 440; Allen v. McKay,

120 Cal. 339; Coddell v. Railroad, 132 N. Car. 853.

"A prima facie case of negligence is made out by the testimony of the plaintiff, that being a passenger on defendant's street car, she indicated her desire to leave it, which stopped to enable her to do so, and that while she was in the act of leaving, and before she could place herself safely on the ground, it started and threw her." (Paul v. Railroad, 30Utah 49; Gleason v. Railroad, 140 U. S. 443-4; Stokes v. Stanstall, 13 Pet. 181; Stearns v. Ontario, 184 Pa. St. 519; Dampman v. Railroad, 166 Pa. St. 520; Laing v. Colder, 8 Pa. St. 479; Railroad v. Swan, 81 Md. 400; Railroad v. Yarwood, 65 Am. D. 686-7, and note 690; Railroad v. Snyder, 117 Ind. 437; Sullivan v. Railroad, 72 Am. D. 698; Redf. Carriers, sec. 341.)

The carrier bound itself to carry the passenger safely and without any negligence so far as human care and foresight would go. (Chitty on Carriers, p. 256; Bonny, Ry. Carriers, p. 14; Stearns v. Spinning Co., 184 Pa. St. 523; Doolittle v. Railroad, 62 S. Car. 138; La Blank v. Sweet, 31 So. 772.)

"Whenever there may reasonably be a difference of opinion as to the inferences and conclusions from the facts, it is likewise a question for the jury. It belongs to the jury, not only to weigh the evidence and find upon the questions of fact, but to draw conclusions as well, alike from disputed and undisputed facts. (Johnson v. Railroad, 70 Pa. St. 363; Railroad v. Hoeffner, 175 Ill. 634; Railroad v. Atkins, 46 Ark. 437; Rail road v. Wiswell, 168 Ill. 615.)

This rule is so well established in this jurisdiction that it should not be necessary to cite authorities. (Paul v. Railway, 30 Utah 46; Pence v. Mining Co., 27 Utah 386; Linden v. Anchor M. Co., 20 Utah 147; Bowers v. Railroad, 4 Utah 224; Olson v. Railroad, 9 Utah 138; Peck v. Railroad, 25 Utah 21; Holland v. Railroad, 26 Utah 212; Hone v. Mammoth M. Co., 27 Utah 176; Cooley, Torts, p. 804; Railroad v. Byrum, 153 Ill. 137; Doolittle v. Railroad, 62 S. Car. 137; Cooper v. Railroad, 61 S. Car. 345.)

RESPONDENT'S POINTS.

While we agree with counsel's first premise that "Failure to give proper instructions requested, is ground for new trial," it should also be remembered that if the court, in its instructions given, fully covers the grounds indicated by the requests, so as to fairly submit them to the jury it is sufficient; and it is not necessary to use the precise language adopted by counsel in his requests. (Konold v. Railroad, 21 Utah 379; Scoville v. City, 11 Utah 66; Cunningham v. Railroad, 4 Utah 206; Thiede v. Utah, 159 U. S. 510.)

"The burden of proving negligence rests on the party alleging it, and when a person charges negligence on the part of another as a cause of action, she must prove the negligence by a preponderance of the evidence." (Brown v. S. P. Co., 7 Utah 288; Fritz v. Elec. Light Co., 18 Utah 494; Beebe v. St. Louis Transit Co., 103 S. W. 1019.)

"The instructions given to the jury by the trial court should be considered together, and even though detached facts of the instructions appear to be erroneous, yet if the charge considered altogether correctly presents the law, it will not be erroneous." Hamer v. Bank, 9 Utah 215; Major v. Railroad, 21 Utah 141; People v. Wiggins, 1 Utah 324; People v. Lyman, 2 Utah 30; Rufatli v. Mining Co., 10 Utah 286; State v. McCoy, 15 Utah 151; Thiede v. Utah, 159 U. S. 510.)

"It is not proper to point out a single instruction and claim it to be objectionable of itself, but all the instructions must be considered together." (Nickels v. Wells, 2 Utah 167; People v. Olsen, 4 Utah 413; State v. Williams, 22 Utah 248.)

FRICK, J.

This is the second appeal of this case. The opinion on the first appeal is reported in 30 Utah 41, 83 Pac. 563, where judgment in favor of respondent was reversed upon the ground that the court committed error in its instructions to the jury. The facts developed on the second trial are practically the same as on the first, and they now appear to be as stated by Mr. Justice Straup on the former appeal.