Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-06-17

mine whether such evidence pre-
ponJerates, or whether, der all the
evidence, we would render the same
Judgment, and, II not, then substitute
our Judgment or that OF the jury"
Tue courts charge 10 the jury,
which was excepted to by counsel iYr
the appellant, Ia then tgkau no.
That part specifically objected to by
ne appellant Ia the portion whs rein
the word "customp Is defined. The
Jury were told thai oustom or
usage must be 80 certain" as tue
business 40 which the rule apples
VIII permit"
o a. IL point Justice Bar,oh says:
A custom does not depend upon
whether the business in which IL Is
claimed TO exist, Will permit Us exist
ence. The question is, does IL actually
exits Is it established as factf
In addition 10 being CERTAIN, the GUS
tom or usage must be- uniform, reason
able, and no contrary 10 Jaw. There are
no comparative degrees n TO tho GER
tainty OF u custom. 1t Is either certain
or IL Is no., aud the charge OF the court
qualifying this elomont Is erroneous,
and in this case the error is
material, because the portion OF
the paragraph In which /. occurs, relates
to the preceding portions OF the, same
paragraph, wherein the court, in sub
stance, told the jury that II they believed
from The evidence that the deceased,
without exposing himself to any danger,
could have remained in the sheep cars
until the train stopped, and then could
have walked TO the caboose, but instead
OF 80 doing, carolessly and rocklessly, In
the face OF known danger, attempted to
return 10 the caboose over the top OF the
cars while passing through the snow
sheds in a storm so severe
us TO lax all his energies to
maintain his footing, II such
ciimalic conditions existed, then the
plaintiff could not recover, unless tho
jury further beloved from the evidence
that II was custom among sheepmen,
known to the defendant and acqniesced
IN by It, a. or prior to the time, aud at or
near the place OF injury, to walk across
the top of tho cars while in motion. In
other words the jury were instructed that
tho plaintiff was not barred from a re-
covery unless the deceased carelessly or
recl1lessly, in the face OF known danger,
under the conditions described, returned
TO the caboose oven the top OF the cars.
Under such rule The defendant, In
order 10 avoid liability in this case, would
have the burden OF showing little less
than a wnnton disregard on the part OF
the deceased, OF his own life and safety.
ouCii Is uOL tut law IL 10
that II the deceased, even incautiousiy,
without the exercise of ordinary care
and prudence, or such as man OF
reasonable care aud foresight would,
under similar circums stances, exercise,
did an act which was tho proximate
cause OF his death, his legal representative
will not be entitled to "a recovery. Tho
question is not as to The degree Of
negligence on the part Of the deceased,
but whether hewas guilty OF any negli-
gence which caused or contribu ed 10 the
| injury. Nor IL IT necessary, to bar a re-
covery, that the act OF negligence should
have been committed IN tile face of
known or apparent danger. II Is sufii-
cient, If the deceased WAS guilty of any
| negligence which was the proximaIe
| cause OF the injury, although, at the
time, the real danger Of the act was not
| apparent or known to him.
That the charge of the court, respects
| ing custom and oontributory negligence,
WAS erroneous aud misleading to tho
, jury, is obvious.
Justice Barlch also Us that there
are portions fthe court's charge with
resplci to c0Htribuiory negligence
(which are not invulnerabie 10 scTu,i-
| n.y." but as they were not excepted t,
| the urt cannot consider them.
| Regarding the contendei error Of
the tutt allowing certain question s
TO be answered. by witness at the
rial, the court says II should have
been eliminated.