
    LOOFBOUROW v. UTAH LIGHT & RY. CO.
    No. 1912.
    Decided April 4, 1908
    (94 Pac. 981).
    1. Damages — Pleading—Evidence. In an action for personal injuries, a complaint alleging that by reason of defendant’s negligence plaintiff received certain specified injuries, and that becauseof them plaintiff “has been . . . and now is unable to do any manual labor whatsoever, . . . that the injuries are permanent, and that he will bé prevented from actively pursuing his business during the term of his natural life,” was sufficient to apprise defendant that plaintiff would probably offer evidence regarding his vocation, earnings, and loss thereof, and, in the absence of a special demurrer on the ground of uncertainty, defendant could not complain of the admission of such evidence.
    2. Appeal — Harmless Error — Admission of Evidence —■ Error Cured by Striking Out or Instructions to Jury. In an action for injuries to an engineer, defendant on cross-examiriation of plaintiff asked him as to any efforts made to obtain employment after the injuries. Plaintiff disclosed that he did not obtain any permanent employment as an engineer, notwithstanding he made repeated efforts to do so; that he obtained some employment as engineer, but had to quit it because of his physical condition due to his injuries. Held, that the erroneous admission on redirect examination of testimony of plaintiff as to what certain persons of whom he sought employment said to him concerning his ability to perform the duties of an engineer was not prejudicial; the court on defendant’s motion having stricken the evidence from the record, and instructed the jury to disregard it.
    
      3. Steebt Railroads — Regulations and Operation — Cake Required in Operation op Road — Right op Way over Tracks — Collision with Vehicles — Negligence—Questions bob Jury. The public, in entering on street car tracks, are not trespassers, nor mere licensees, but are there as a matter of right, and may remain therein until a ear approaches, and while the cars have the preferential right of passage, the operatives thereof must exercise ordinary care for the Tights of others; and where a collision between a car and a vehicle on or near the track occurs, the question of whether either or both parties exercised under the particular circumstances .the degree of care required bylaw is ordinarily one of fact for the jury.
    
    Appeal from District Court, Third District; M. L. Ritch-ie, Judge.
    Action by Harlan Loofbourow against the Utah Light & Railway Company. Judgment for plaintiff, and defendant appeals.
    Appirmed.
    Dor prior report, see 31 Utah 355/88 Pac. 19.
    
      P. L. Williams, Geo. II. Smith, and Jno. G. Willis for appellant.
    
      W. P. Hutchinson and A. R. Barnes for respondent.
    RESPONDENT^ POINTS. .
    “If the petition claims damages for loss of time because of permanent disability, the plaintiff may prove his skill as a mechanic, the employment he was engaged in, and the wages received, although such facts are not alleged.” (4 Sutherland on Damages [3d Ed.], sec. 1241, p. 3625; Flan-nigan v. Railroad, 83 Iowa 639, 50 N. W. 60; Lesser v. Railroad, 85 UVCo. App. 326; Wade v. LeRoy, 20 How. [H. S.] 34; Treadwell v. Whittier, 80 Cal. 514, 22 Pac. 266; Bucle v. Ripon, 52 Wis. 196; Railroad v. Burnett, 80 Tex. 586; Ehrgott v. Mayor, 96 N. T. 264; Railroad v. Ham-theme, 3 Wash. Ter. 353; Hubert v. Bedell, 21 N. T. Supp. 305; Croco v: Railroad, 18 Utah-311.)
    
      
       Spiking v. Ccmsolidated Ry. & Power Co, 33 Utah 313, 93 Pac. 838.
    
   UKIOK, J.

This is an action for damages for alleged personal in juñes sustained by respondent and for damages to his horse and' cart caused by a collision with one of respondent’s street cars. • The case is here on second appeal. The first appeal is reported in 31 Utah 355, 88 Pac. 19, where the facts are stated. The evidence on the second trial was practically the same as on the first, and we refer to the statement of the case as made by Mr. .Justice Straup for further particulars. On the second trial the jury again found in favor of respondent. Upon the verdict judgment was entered, from which this appeal is prosecuted.

The appellant asserts that the court erred in admitting over its objections certain evidence concerning respondent’s vocation, and what he could earn, and what his earnings had been prior to the injuries complained of. This alleged error is based upon the ground that such evidence was not relevant under the facts stated in the complaint. The evidence was admitted under the following allegation: That by reason of the acts of negligence set out in the complaint “several of the plaintiff’s ribs, to wit, six, were crushed and broken, and plaintiff was otherwise greatly injured and bruised about the loins, back, limbs, spine, and body, and was thereby caused great physical pain and anguish of mind, and thereby made sick, sore, lame, and disordered from hence hitherto; that by reason of said injuries so received as aforesaid plaintiff has been ever since said date last mentioned, and now is, unable to do any manual labor whatsoever, and plaintiff upon information and belief alleges that said injuries are permanent and lasting; and that he will be prevented from actively pursuing his business during the term of his natural life.” Here is a complete statement of respondent’s injuries, their character and extent, and that by reason thereof he was and will continue to be prevented from pursuing his business or vocation. This was sufficient to apprise appellant that respondent in all probability would offer evidence with regard to his vocation, earnings, and loss thereof. If these allegations were deemed not sufficiently specific in respect to respondent’s calling or vocation, or if appellant was unable to determine from them the vocation or calling of respondent, it should have challenged the statements in that regard by special demurrer upon the ground of ambiguity or uncertainty. Not having done so, it cannot now be heard to complain of the admission of evidence with regard to respondent’s vocation as an ordinary engineer and his loss of earnings. The question involved here is quite unlike the one involved in the case of Pugmire v. O. S. L., 92 Pac. 762, recently decided by this court. The question here presented has frequently been considered and passed upon by the courts, and, while there is some diversity of opinion, the overwhelming weight of authority is to the effect that under allegations even less specific than those contained in this complaint the evidence admitted in this case is clearly relevant and proper. Among very numerous authorities that might be cited upon this point we refer to the following: Lesser v. St. L. & Sub. Ry. Co., 85 Mo. App. 326; So. Pac. Ry. Co. v. Hall, 100 Fed. 760, 41 C. C. A. 50, 54; Columbia, etc., Ry. Co. v. Hawthorne, 3 Wash. T. 353, 19 Pac. 25; Treadwell v. Whittier, 80 Cal. 574, 22 Pac. 266, 5 L. R. A. 498, 13 Am. St. Rep. 175; Luck v. City of Ripon, 52 Wis. 196, 8 N. W. 815; Sutherland on Damages (3d Ed.), sections 1247, 1248.

It is further contended that the court erred in admitting evidence over the objection of appellant with regard to what certain persons said to respondent concerning his ability to perform the duties of an engineer when he sought employment from them after the injuries. This evidence was all stricken 'from the record by the court during the trial, and before respondent rested his case, on motion of his counsel. And the court, in an instruction, told the jury they must not consider any evidence that was stricken out. It is now urged' that this did not cure the error of admitting the improper evidence. That the declarations of the persons referred to and wbat was'said by respondent at the time was improper evidence there can be little, if any, room for doubt. But we think the error in admitting the evidence, in view of all the circumstances disclosed by this record, was completely cuved by striking it out from the record and withdrawing it from the jury. Such is the general holding of the courts upon the question under consideration, which is well illustrated by the following authorities, which are a few only of the numerous cases that might be cited: Boone v. Purnell, 28 Md. 607, 629, 92 Am. Dec. 713; Pennsylvania Ry. Co. v. Roy, 102 U. S. 451, 458, 459, 26 L. Ed. 141; Tolbert v. Burke, 89 Mich. 132, 50 N. W. 803; Hillstad v. Hostetter, 46 Minn. 393, 49 N. W. 192. It must be conceded that, if properly limited to particular cases, there is much force to the argument of counsel for appellant, namely, that where improper evidence is once admitted in jury trials the jury may be unable to entirely dismiss it from their minds, and under certain circumstances may not be able to entirely segregate it from other evidence in the case. There may be, and no doubt are, cases where, under peculiar circumstances, an error in admitting certain evidence may not be curable by simply striking it out and withdrawing it from the jury. There may be cases where the improper evidence may be vital to an issue, and where there is but little left to sustain such issue if the improper evidence is stricken and withdrawn, and the jury, having this evidence in mind, may base their findings in part at least upon such evidence. When such a condition in presented, the trial court may, on motion for a new trial, consider and pass upon it, and its ruling thereon may be reviewed by this court. This record, however, does not present ,such a case, for the following reasons: Appellant’s counsel, on cross-examination, introduced the matter by making inquiry of respondent, when a witness in his own behalf, what, if any, efforts he had made to obtain employment after the injuries, and where, and of whom. Respondent answered these questions, and disclosed that he did not obtain any permanent employment as an engineer, notwithstanding the fact that he had made repeated efforts to do this; that he had obtained some employment as engineer, but bad to quit it because be was unable to do tbe work, or “couldn’t stand it,” as be put it, on account of bis physical condition due to tbe injuries. Respondent’s counsel, upon redirect examination,’ elicited from respondent, tbe statements and declarations made by tbe persons, to whom be bad applied for employment, all of wbicb were objected to and admitted over appellant’s objections, but afterwards stricken from tbe record and withdrawn from tbe jury as before stated. Under these eircurn-stances, in view of tbe character of tbe evidence, appellant could not have been prejudiced. This is well illustrated in tbe case of Hillstad v. Hostetter, supra. It is extremely doubtful whether, in view of tbe whole record and tbe circumstances under wbicb tbe evidence was elicited, tbe case could be reversed, although the evidence bad not been stricken and withdrawn from tbe jury.

Tbe only other assignment to be considered is that tbe court erred in not directing a verdict in favor of appellant as requested by it. In this tbe court did not err. Tbe questions involved were peculiarly for tbe jury to pass upon. There is abundant evidence to sustain their findings, and there would have béen to sustain a finding for appellant bad tbe jury so found. Where collisions upon a public street occur by street cars colliding with vehicles, it is very rare that tbe question of negligence can be determined as matter of law. In such case, as we bad occasion to remark in Spiking v. Consolidated Ry. & Power Co., 93 Pac. 838, the operatives of street ears must take cognizance of tbe fact that that portion of the street upon wbicb tbe street car tracks are laid, is not withdrawn from public use or travel. Tbe public entering upon such tracks are not trespassers, nor mere licensees. They are there as a matter of right, and may remain thereon until a car approaches. Tbe cars have the preferential right of passage, but, in doing so, tbe operatives of tbe car must exercise ordinary care for tbe rights of others. If a collision occurs, therefore, by a car with a vehicle on or near the track, tbe question of whether either or both parties exercised that degree of care under the- particular circumstances wbicb tbe law imposes is ordinarily a question of- fact to be passed on by tbe jury. Tbe evidence in this case brings it clearly within tbe class that required tbe court to submit it to the jury.

Nrom what has been said, it follows that- tbe judgment-should be, and it is, affirmed; respondent to recover costs.

McCARTY, C. J., and STRAUP, J., concur.  