(188 P.) Geo. H. Smith, J. V. Lyle, and C. B. Diehl, all of Salt Lake City, for appellant. J. W. Gardner, of Logan, for respondent. THURMAN, J. Plaintiff's amended complaint in substance alleges the capacity and business of defendant as a railroad company and that it had a railroad station, track, and yard at Cornish, Utah; that on or about the 2d day of November, 1902, plaintiff went to said station with the intent and purpose of engaging and taking passage from said station to Lima, Mont.; that the train was advertised to depart from said station at 1:30 o'clock a. m., and that said plaintiff arrived at the station at the time advertised for the said train's departure; that the train was about three hours late, and the night was cold, dark, and stormy; that defendant, in violation of its duty, failed to use ordinary care and diligence to make, promulgate, and enforce any rule for the protection of its passengers, and failed and neglected to have said station open, lighted, or warmed, and plaintiff was obliged to remain on the platform, without shelter, in the cold, wet, and storm for the space of about three hours, by reason of which neglect and exposure plaintiff took a severe cold and contracted the disease commonly called asthma, from which he has never recovered; that he is permanently injured, and from the disease so contracted has suffered and still suffers great physical and mental pain; that since said November 2, 1902, to the present time, he has been sick and constantly under the care of physicians and has been wholly unable to perform any labor or attend to the transaction or the performance of his usual and necessary business, whereby plaintiff has been and is greatly damaged in the sum of $12,000, for which sum he prays judgment. [1] Appellant, by failing to argue either orally or in its brief, abandons its first assignment of error. [2] By the second assignment appellant charges error in overruling its motion for a directed verdict. At the conclusion of the evidence defendant moved for a directed verdict on the following grounds: "First, that there is no disputed question of fact to be submitted to the jury; second, that there is no evidence to warrant a verdict against the defendant; third, that the court would be bound to set aside a verdict if one were rendered against the defendant; fourth, that the evidence is insufficient to support a verdict in favor of the plaintiff." In The motion nowhere specified the particular grounds upon which the defendant relied. It failed to point out or call to the attention of the court or opposing counsel the particulars wherein the evidence was insufficient so as to enable them to understand the points relied on. No opportunity was afforded plaintiff by the motion to supply any defect in his evidence, because no such defect was called to his attention. Under the decisions of this court, the trial court was not chargeable with error in overruling the motion. Smalley v. Railroad Co., 34 Utah, 423, 98 Pac. 311. that case the trial court granted a motion for directed verdict, and because of the particular circumstances attending the case this court on appeal sustained the ruling and affirmed the judgment. In an able and lucid opinion by Hon. D. N. Straup, then a member of this court, the question is elaborately discussed, and the decisions of the court in other cases are referred to. In the light of these authorities, which are well considered, we are of the opinion that the trial court committed no error in overruling the motion for a directed verdict. The defendant, answering, admits its capacity and business as a railroad company, and [3] Respondent, in discussing the assignthat it has a station called Cornish, at which ment just considered objects to our right to the transaction attempted to be alleged in review the evidence, and relies on rule 26 the complaint occurred, but alleges that said | (97 Pac. x) of the practice of this court, which station is in the state of Idaho. Defendant requires an appellant in certain cases to specdenies the remaining allegations of the comify the particulars wherein the evidence is plaint, and in substance affirmatively alleges insufficient. It should be understood once for that the injury, if any, of which the plaintiff complains, and the damages sustained by him, if any, were caused by his own negligence, and were not caused, nor the cause thereof contributed to, by the negligence of defendant. The cause was tried to a jury, which rendered a verdict in favor of plaintiff, and judgment was entered thereon. This appeal is taken from the judgment so rendered, and appellant assigns as error: (1) The admission of certain testimony over its objection; (2) the overruling of its motion for a directed verdict; (3) the giving of certain instructions excepted to by it; and (4) the refusal of the court to instruct the jury, as requested by it, to return a verdict of no cause of action. all that rule 26, in the particular mentioned, has no application whatever to a motion for a directed verdict. If the motion for a directed verdict, where insufficiency of the evidence is relied on, fails to specify the particulars wherein the evidence is insufficient, the trial court is justified in denying the motion, and even if appellant should afterwards on appeal, in his assignment of errors, specify the particulars wherein the evidence is insufficient, such specification, as far as the motion is concerned, would be of no avail. That rule of practice is entirely independent of the requirements of rule 26, as will more fully appear upon an examination of the opinion in the Smalley Case, supra, and the cases therein cited. [4, 5] Passing for the present appellant's third assignment, we will next consider assignment No. 4. Appellant contends that the court erred in its instruction No. 10, which reads as follows: "You are instructed that the evidence in this case is insufficient to support a verdict against the defendant, and you are therefore instructed to return a verdict of no cause of action." Again we are confronted with the proposition that there was no specification of particulars wherein the evidence is insufficient. Whether the alleged insufficiency relates tothe relation of plaintiff to the defendant, the "There is no difference in the degree of care required of carriers, nor in the measure of liability in the transportation of passengers for hire and gratuitous passengers or those who may be riding upon a pass, nor is it necessary for one to be in the carrier's train or be travel-character and extent of plaintiff's injury, or ing thereon to constitute one a passenger, but one is as much a passenger, entitled to all the care, protection, accommodations, and privileges of a passenger, while he is waiting at the carrier's station, at a reasonable time before the time for departure of the train, ready and with the intention to take passage thereon in due course." The exception was taken to the instruction as a whole. It is a rule too well established to be the subject of controversy that such an exception cannot be sustained if any part of the instruction is good. Counsel for respond ent in support of this rule calls our attention to the following cases: Farnsworth v. U. P. Coal Co., 32 Utah, 112, 89 Pac. 74; Pool v. So. Pacific, 20 Utah, 210, 58 Pac. 326; Wall v. Niagara M. & S. Co., 20 Utah, 474, 59 Pac. 399; Nebeker v. Harvey, 21 Utah, 363, 60 Pac. 1029; Pennington v. Redman V. & S. Co., 34 Utah, 223, 97 Pac. 115; Ryan v. Curlew Irr. Co., 36 Utah, 382, 104 Pac. 218; Grow v. Utah L. & R. Co., 37 Utah, 41, 106 Pac. 514. There are later decisions of this court to the same effect, but, as the rule is not in dispute, additional cases need not be cited. The question then is: Is the instruction divisible into integral parts, each of which, when considered separately, is bad in law, or is one or more of the integral parts unexceptionable? If the former, the instruction is bad as a whole and the exception is well taken; if the latter, the exception cannot prevail even though the instruction is objectionable in one or more of its integral parts. This calls for analysis. Respondent contends that the first part of the instruction, down to the word "pass," is severable from the remainder and constitutes a distinct rule of law. It reads: "There is no difference in the degree of care required of carriers nor in the measure of liability in the transportation of passengers for hire and gratuitous passengers or those who may be riding upon a pass." This clause, considered by itself, undoubtedly states a correct rule of law. 2 Moore on Carriers (2d Ed.) pp. 1030-1036; 2 Hutchinson, Carriers (3d Ed.) p. 1178; 2 Michie, Carriers, p. 1564 et seq. It would serve no useful purpose to review the remaining parts of the instruction. Appellant's exception to instruction No. 10 is not well taken. [6] In its assignment No. 5 appellant contends that the court erred in refusing to give its requested instruction No. 15, which reads: whether he was injured at all, or whether the defendant was negligent, and, if negligent, whether the negligence was the proximate cause of the injury, or whether the plaintiff was guilty of contributory negligence, neither the respondent nor the members of this court are in any manner informed or enlightened by the assignment of errors or by any specification elsewhere found in the record. We have already referred to the fact that the motion for a directed verdict was insufficient in not stating the particular grounds of the motion, not because of rule 26 and the practice of this court, but because the decisions of the court have been uniform in requiring it. We are now confronted with a different situation-a situation to which rule 26 is especially applicable. That rule, among other things, provides: of the insufficiency of the evidence to sustain or "When the alleged error is upon the ground justify the verdict or decision, the particulars wherein the evidence is so insufficient shall be specified." There can be no denial of the proposition that in the present case that provision of the rule has been entirely disregarded. The rule in question is not a mere rule of convenience originating entirely in the mind of the court; it is a rule based upon a positive statute which has never been repealed. Comp. Laws Utah 1917, § 6967, makes substantially the same requirement. That statute contemplates that the specification shall be made in the bill of exceptions, but, as it was considered more convenient to litigants to permit them to make their assignment of errors and specifications of particulars after appeal was taken, rule 26 was adopted, and in effect accomplishes all that the statute requires. This question was considered at length in a recent decision of this court in which all of the previous cases and statutes bearing upon the question are referred to. Egelund v. Fayter, 172 Pac. 313. See, also, Holt v. Great Eastern Casualty Co., 173 Pac. 1168. As this question was carefully considered by the court in the cases referred to and the cases cited in the opinions, we deem it unnecessary to prolong the discussion. [7] In view of the decisions of tais court to which we have referred, we do not feel authorized to review the evidence in this case for the purpose of determining whether or not the trial court erred in denying defendant's request for a peremptory instruction. (188 P.) In assignment No. 3 appellant excepted to the following words in the court's instruction No. 9: In this connection you are instructed that it is the duty of the railroad company to protect its passengers from injury and to provide reasonably safe means for their comfort and accommodation and use due care for their protection and safety, while waiting at its station for trains, and the same rule applies both at stations where they are termed 'flag stops' or 'regular stops."" In view, however, of appellant's assignment | Indeed, if we understand the record, that was No. 3, which we have purposely deferred con- the train upon which his passes would arrive. sidering until the other assignments were dis- The mail would then be carried to the post posed of, we deem it our duty to review the office at Weston, at which point he would reevidence in part at least for the purpose of ceive the passes. In any event it is concludetermining whether or not the plaintiff, in sively shown that the schedule time of the the transaction of which he complains, was a night train at Cornish was 2:45 a. m. The passenger on defendant's railroad as a matter plaintiff, because of the confusion as to the of law. This is rendered necessary by appel- time of the train above referred to, arrived lant's exception referred to in assignment at the station from Weston at about 12:30 No. 3. a. m., some two hours before the train was due, and the train happened to be nearly an hour behind its schedule time. The evidence shows that the night was cold and stormy. It also shows that when plaintiff was at the station at noon he asked the agent if the station would be open at night, and the agent answered it would. When plaintiff and his son arrived at the station from Weston that night, they found the door of the waiting room locked or fastened so that they were not able to enter. They knocked and kicked the door. The agent, who was in the station, in words to that effect, but did not open the fact, living there, told them to keep still, or door. The plaintiff and his son continued at the station, walking or running back and forth on the platform outside to keep warm, until the train arrived, which was some time between 3 and 4 o'clock. The evidence is conclusive that, while the station was one that was not kept open all night during the summer months, yet it was the custom to keep it open during cold and stormy weather even during the summer months, and to keep it open all the time between about the middle of October and the month of May next succeeding. The station agent and his wife both testified concerning this custom; in fact, the There is no instruction defining what in law constitutes a passenger on a railroad, nor was there any request for such instruction. The language complained of assumes or takes it for granted that plaintiff was a passenger and instructs the jury upon that assumption as to its duty in such cases. As it is not admitted in the pleadings or elsewhere by the defendant that plaintiff was a passenger, in order to sustain the instruction, or the language to which exception is taken, it is necessary to find as a matter of law that plaintiff was in fact a passenger. This, because of the court's assumption, must appear from the undisputed evidence in the case. instructions received by him from the defendant company. Neither the agent nor his wife seemed to remember anything concerning the plaintiff or the transaction above referred to. It should be understood that, while the transaction occurred on or about the 1st of November, 1902, and the action commenced in 1904, the trial of the case, for some reason unexplained, did not take place until the month of April, 1919. This, no doubt, accounts for their failing to remember anything concerning the transaction. The undisputed evidence shows that plaintiff and his son arrived at appellant's rail-agent testified that it was in pursuance of road station at Cornish about noon on or about the 31st day of October, 1902, for the purpose of taking passage on the train at that point for Lima, Mont. They were expecting passes for their transportation, but when they arrived at Cornish the passes were not there. They had the agent at that station telegraph for their passes, and through him received answer by telegram that the passes would arrive by mail on the noon train of that day. The post office was at the town of Weston, a distance of three or four miles from the station. After making some inquiry of the agent as to when the next train för Lima would arrive at Cornish, they left their baggage on the platform of the station depot and walked to Weston. There is some confusion in the testimony as to whether plaintiff inquired for the time of the "next train" or of the "night train" to Lima, but this, in our opinion, is immaterial. It is quite conclusive it was the night train he inquired, for, after being informed that the passes would arrive on the noon train, the schedule time of which was 1:28 p. m., the plaintiff could not have contemplated going to Weston for his passes and returning to catch the 1:28 p. m. train. Upon this state of facts the question is: "The relation of carrier and passenger commences when a person with the good-faith intention of taking passage, and with the express or implied consent of the carrier, places himself in transportation which the carrier offers. In case a situation to avail himself of the facilities for of a railroad this relation arises not merely when the passenger enters the train with the ticket already purchased, giving him a contract right to ride, but when he enters upon the prem ises of the carrier, with intention to take a stents and purposes, a passenger on defendtrain in due course." ant's railroad. In 2 Moore on Carriers (2d Ed.) at page 978, the author states the rule in the following language: "As a general rule, the relationship of passenger and carrier begins as soon as one, intending in good faith to become a passenger, enters in a lawful manner upon the carrier's premises for that purpose, and the carrier's responsibilities date from that time. Ordinarily a person coming to a railroad station with the intention of taking the next train is, in contemplation of law, a passenger, provided his coming is within a reasonable time before the schedule time for the departure of the train." In 2 Michie on Carriers (2d Ed.) at page 1509, the author says: "The general rule seems to be that one is entitled to the care and protection due a passenger while he is upon the carrier's station grounds for the purpose of taking a train which should depart for his proposed destination within a reasonable time." This disposes of all the assignments of error. The judgment of the trial court is affirmed at appellant's costs. and GIDEON, JJ., concur. CORFMAN, C. J., and FRICK, WEBER, (55 Utah, 588) FISHER v. BONNEVILLE HOTEL CO. (No. 3417.) (Supreme Court of Utah. March 17, 1920.) 1. EXCEPTIONS, BILL OF 22-DOCUMENTS SHOULD NOT BE ATTACHED TO BILL AFTER PREPARATION. Documents purporting to extend the time to prepare and serve a bill of exceptions should not be attached to the bill after it has been prepared and presented for settlement. 2 Hutchinson on Carriers (3d Ed.) at page 2. EXCEPTIONS, BILL OF 39(1)-TIME FOR 1160, states the rule as follows: "The general rule is that, where a person, with the bona fide intention of taking passage upon a train, goes to the station within a reasonable time prior to the hour of departure of the train, and there, either by the purchase of a ticket or in some other manner, indicates to the carrier his intention to take passage, from that time on while waiting for the train he is entitled to all the rights and privileges of a passen ger." These are standard authorities on the law of carriers. The excerpts above quoted appear to be well supported by a large number of cases cited in the notes thereto. See, also, 10 C. J. 921, 922, and Barnett v. Minn. & St. P. Ry. Co., 123 Minn. 153, 143 N. W. 263, 48 L. R. A. (N. S.) 262. In our opinion the language above quoted from the authorities cited correctly reflects the law applicable to the case at bar. It was during the period of three hours waiting that plaintiff alleges he caught cold and contracted the disease or injury of which he complains. Concerning this, however, we make no comment for the reasons heretofore stated. Neither can we, consider the questions of negligence, contributory negligence, proximate cause, or the question of damages. The sole purpose of reviewing the evidence at all is to demonstrate whether or not, in contemplation of law, plaintiff was a passenger on defendant's railroad. Without further comment, it is the opinion of the court that the acts and conduct of plaintiff, the material features of which must have been known to the agent, brought plaintiff within the principles of law above set forth, and that he thereby became, and was to all in FILING WHERE NO NOTICE OF ENTRY OF JUDGMENT GIVEN STATED. Where no notice in writing of the entry of judgment was served on defendant, defendant would have the whole of the six months period allowed for appeal, and perhaps longer under certain conditions, in which to prepare the bill of exceptions and procure settlement thereof, in view of Comp. Laws 1917, § 6969.1 3. Appeal and error 529(1)—BILL OF EX CEPTIONS MUST SHOW SERVICE OF NOTICE OF ENTRY OF JUDGMENT. Where the bill of exceptions did not show service of notice of entry of judgment, the bill, which was prepared and presented for settledeemed to have been presented in time, notment within the six months period, will be withstanding a document purporting to be a notice of entry of judgment, served on defendant appellant, appeared in the transcript sent up by the clerk of the district court, for, as the bill of exceptions showed no service, Comp. Laws 1917, § 6969, requiring the bill of exceptions to be prepared and served within 30 days after services of notice of judgment, has no application. 4. INNKEEPERS 11(1)—LIABILITY OF INNKEEPER AND BOARDING HOUSE KEEPER CONTRASTED. An innkeeper is an insurer of property committed to his care by a guest and is responsible for its loss, unless loss is caused by the act of God, the public enemy, or negligence of the guest himself; but, where the relation between the parties is that of boarder and boardliable only for loss for failure to exercise ordiing house keeper, the boarding house keeper is nary care.2 1 Wilson v. Salt Lake City, 174 Pac. 851. 2 Lawrence et al. v. Howard, 1 Utah, 142. (188 P.) 5. INNKEEPERS 8-WHO ARE "GUESTS" AT INN. Any one away from home receiving accommodations at an inn as a traveler is a "guest," entitled to hold the innkeeper responsible as such; hence the wife of a legislator, who had come to the capital city of the state during the session, is a guest in a hotel in which she and her husband were residing during his stay as a legislator, even though the room was rented by the month (citing Words and Phrases, Guest). a motion made by respondent to strike the bill of exceptions. The motion is voluminous, and calls attention to numerous apparent irregularities in the document filed as a bill of exceptions. Various documents purporting to be orders extending time to prepare and serve the bill are challenged by respondent and their authenticity disputed. All of the alleged orders covered by the motion appear to have been procured and attached to the bill after it had been prepared and served, and even after it had been returned to appellant and presented to the court for settlement. This, of course, is an irregularity, and it is difficult to understand just how it could have occurred. The explanation made by appellant's counsel, however, tends to show good faith on their part in attaching the documents to the bill, so that no intentional wrong may be imputed to them in respect to the matter which conAppeal from District Court, Salt Lake stitutes the basis of the motion to strike. County; P. E. Evans, Judge. 6. INNKEEPERS 8-WIFE OF GUEST DEEMED GUEST, THOUGH SHE DID NOT REGISTER OK PAY FOR LODGING. Though the wife of a guest at a hotel, who rented a room by the month during his temporary stay in the city, did not register and paid no consideration, she is nevertheless a guest in the hotel, and entitled to protection as such, and the hotel is liable for loss of her baggage delivered to the hotel porter. Action by Annie M. Fisher against the Bonneville Hotel Company. From a judgment for plaintiff, defendant appeals. Affirmed. Gustin, Gillette & Brayton, of Salt Lake City, for appellant. H. L. Mulliner, of Salt Lake City, for respondent. THURMAN, J. Plaintiff alleges in her complaint the corporate existence of defendant and that it was the keeper of an inn or hotel in Salt Lake City known as the "Newhouse Hotel"; that on the 20th day of January, 1917, after plaintiff had been received by defendant as a guest in said hotel, plaintiff delivered to and left in the custody of said defendant her baggage, consisting of a leather grip, containing wearing apparel, toilet articles, and other personal property, all of the reasonable value of $204.75; that after defendant had taken possession of said baggage and property, and assumed the relation of hotel keeper thereto, said defendant negligently failed to care for the same, so that it became wholly lost to the plaintiff, to her damage in the sum heretofore mentioned. Defendant, answering, admits that at the time mentioned in the complaint it was a corporation, and keeper of the inn or hotel described in the complaint. It denies both specifically and generally all the remaining allegations thereof. The cause was tried to the court without a jury, findings were rendered in favor of the plaintiff, judgment was entered thereon, from which judgment defendant appeals, and assigns numerous errors in the findings of the court. [1] Before considering the alleged errors of the court, it becomes our duty to dispose of [2, 3] As we view the question, the documents objected to are wholly immaterial, and need not have been attached to the bill at all. The record shows that judgment was entered and filed May 15, 1919. Defendant's time within which to appeal would not expire until November 15th of the same year, and if no notice in writing of the entry of judgment was served upon the defendant at all, it would have the whole 6 months, and perhaps longer under certain conditions, in which to prepare and serve its bill of exceptions and procure a settlement thereof. See Wilson v. Salt Lake City, 174 Pac. at page 851. Of course defendant was required to file and serve its notice of appeal within 6 months from the entry of the judgment, whether notice of the entry was served or not; there being in this case no stay of judgment by motion for a new trial or other proceeding. The record shows that notice of appeal was filed and served on the 11th day of November, 1919, and was therefore in time. It further shows that the bill of exceptions was settled on the same day by the judge who tried the case, which was also in time if no notice in writing of the entry of judgment was served upon appellant. Comp. Laws Utah, 1917, § 6969, among other things, provides that a bill of exceptions may be prepared and served within 30 days after notice of the entry of judgment when the case is tried without a jury. The controlling question in this proceeding is, was there notice of the entry of judgment served upon appellant at any time? If so it should appear in the bill of exceptions. It could not appear in the judgment roll. There is no notice of entry in the bill of exceptions. A document purporting to be a notice of entry of judgment served upon appellant appears in the transcript sent up by the clerk For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |