Appeal from Third District.

In view of the foregoing, the district court committed no error in denying the motion for a nonsuit upon the ground that there is no evidence supporting the allegations of negligence.

4

It is, however, also contended that the district court erred in making the following finding of fact:

"That defendant's said agent at the time he reached the point at which he was about to turn northward across Fifth South street to the entrance to said alleyway saw plaintiff approaching and near to the course over which defendant's said agent was about to drive," -for the alleged reason "that said finding is outside the issues in this case, is not supported by the evidence, and is against law"; and that it further erred "in finding herein that defendant's agent carelessly failed and neglected to stop said automobile truck until the north. side of said Fifth South street 'was clear of traffic,' for the reason that said finding is outside of the issues in this case, is contrary to the evidence, and is against law."

There is certainly some substantial evidence in support of the facts found, and hence we cannot set the findings aside upon the ground that they are not supported by the evidence. It is, however, urged that the findings are "outside of the issues." In that connection counsel for the defendant insist that plaintiff's allegations of negligence, in some respects, are mere conclusions of law, and are therefore without legal force or effect. It is insisted that the allegation that the driver 'negligently and carelessly drove the automobile truck," etc., is a mere conclusion of law. In making that contention we think counsel are in error. While pleading negligence in that form is not to be commended, and while it fails to inform the defendant what the particular acts of negligence relied on are, or wherein he was negligent in omitting something he should have done, yet it clearly charges that the automobile truck was negligently handled, driven, or operated, and in a subsequent part of the complaint it is alleged that the alleged negligence caused the collision which resulted in injury and damage to the plaintiff, which injury and damage are stated. Such an allegation of negli

6-8

Freedman et al. v. Denhalter Bottling Co., 54 Utah 513.

gence, although exceedingly general and unsatisfactory, is, nevertheless, sufficient to withstand a general demurrer, and it will admit evidence respecting the acts of negligence relied

on.

9

If the defendant desired more specific statements it should have required the complaint to be made more specific and certain by filing the special demurrer provided for by our Code for that purpose. Having failed to do so it cannot now complain so long as the evidence and findings are not clearly outside of the facts pleaded and outside of the evidence admissible under the pleading. The rule in that regard is well stated in 3 Bates, P. etc., at page 2263, in the following words:

"While a bare allegation of negligence without reference to some particular act, omission, or line of conduct would be a conclusion (Jeffersonville R. R. v. Dunlap, 29 Ind. 426; Taite v. Boorum, etc.. Co., 37 Misc. Rep. 162, 74 N. Y. S. 874), and it is necessary to aver that some act was negligently done or omitted (Cederson v. Oreg. Nav. Co., 38 Or. 343 [62 Pac. 637, 63 Pac. 763], citing numerous cases), yet the general averment that an act or omission or conduct was negligent is, unlike fraud, generally deemed an averment of fact, and not demurrable as being a mere conclusion, and if not objected to by motion will sustain evidence of any negligence in relation to the general conduct charged and all acts and omissions tending to prove the primary fact."

Numerous cases are cited in support of the text, which it is not necessary to refer to here.

The prevailing rule is also stated in 29 Cyc. 570-571, as follows:

"While there is not entire harmony in the adjudicated cases as to the proper method of pleading negligence, the rule sustained by the weight of authority is that, negligence being the ultimate fact to be pleaded and not a mere conclusion of law, a declaration or complaint charging defendant with an act injurious to plaintiff, with a general allegation of negligence in the performance of the act, is sufficient, at least as against a general demurrer for want of sufficient facts, without stating the details or particulars of the act causing the injury, unless the particular acts alleged are such that they could not be negligent under any possible state of facts or circumstances provable under the allegations of the complaint, or the contrary appears from the facts pleaded; and that, under

Appeal from Third District.

such allegation, any evidence tending to show that the act was negligently done may be admitted."

See, also, 1 Boone, Code Pleading, section 174; 2 Boone, Code Pleading (Forms), page 306, note 1.

Under the general allegation, therefore, that the car was negligently driven or operated the plaintiff could prove the particular acts or omissions constituting the alleged negligence, and if the defendant desired to be informed of the particular acts or omissions upon which the plaintiff would rely at the trial it should have proceeded as before suggested. Not having done so at the proper time and in the proper manner, it is too late now to complain.

There is no merit to the contention that the court erred in making the conclusions of law that are complained of.

It is, however, also contended that the court erred in permitting plaintiff to amend his complaint after the evidence was in so as to more particularly state the 10 grounds of negligence. In the absence of objection to the generality of the allegations of the complaint, the plaintiff could properly introduce evidence to prove the acts of negligence set forth in the amendment complained of and the defendant could not be prejudiced in any substantial right by permitting the amendment.

11

Nor can the contention prevail that the plaintiff was guilty of contributory negligence as matter of law. The evidence upon that question is such that reasonable minds. might arrive at different conclusions, and hence was a question of fact and not of law.

While both the allegations of the complaint and the evidence respecting negligence are somewhat unsatisfactory and inconclusive, yet in view of the findings of the trial court, and upon consideration of the whole record, we cannot say that the defendant has been prejudiced in any substantial right, and hence we may not interfere with the judgment. The judgment is therefore affirmed, with costs.

CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.

Rosser v. Broadwater Mills Co., 54 Utah 522.

1.

2.

3.

4.

ROSSER v. BROADWATER MILLS CO. et al.

No. 3347. Decided June 18, 1919. (182 Pac. 204.)

APPEAL AND ERROR-DISMISSAL -NONCOMPLIANCE WITH RULES. Though appellant did not file abstract of record within 15 days after filing the transcript, or within any time given therefor, and no assignments were set forth in the printed abstract, and the date of filing the papers was wholly omitted, held that, though the omissions were in violation of rules 6, 10, and 26 (33 Utah, vii, viii, xiii, 97 Pac. viii, x), and caused inconvenience to respondent's counsel, yet, as the omissions did not in any wise prejudice respondent and the court had jurisdiction, the appeal will not be dismissed. (Page 523.)

APPEAL AND ERROR-REVIEW-ASSIGNMENTS OF ERROR. To authorize a review of the evidence, an assignment as to sufficiency must specify the particulars wherein it is insufficient.1 (Page 523.)

DAMAGES-PERSONAL INJURIES. Where a boy 19 years of age suffered injuries, which included the breaking of bones in a foot, the displacement of his kneecap, injuries to his hearing, spine, kidneys, and back, and his foot was still stiff at the time of trial, held that an award of $4,800 cannot be deemed excessive, or the result of passion and prejudice. (Page 524.)

APPEAL AND Error-Record-ARGUMENT OF COUNSEL. An assignment of error, complaining that counsel for plaintiff in a personal injury action had referred to "the insurance company in the case," held not reviewable, where the expression, if used, was withdrawn, and no objection was taken or exception filed. (Page 524.)

Appeal from District Court, Third District, Summit County; P. C. Evans, Judge.

Action by Morgan Rosser, by Katherine George, his guardian, against the Broadwater Mills Company and C. C. Broadwater. From a judgment for plaintiff, defendants appeal.

AFFIRMED.

1 Holt v. Great Eastern Casualty Co., 53 Utah, 543, 173 Pac. 1168.

Appeal from Third District.

Gustin, Gillette & Brayton of Salt Lake City, for appellants.

W. R. Hutchinson and Walton & Walton, all of Salt Lake City, for respondent.

WEBER, J.

By his guardian ad litem plaintiff brought this action against the defendants to recover damages alleged to have been sustained because of defendants' negligence. The case was tried before a jury, who returned a verdict for $4,800 in favor of plaintiff. Defendant appeals.

Plaintiff moves to dismiss the appeal for the following reasons: Abstracts of the record were not filed within 15 days after filing the transcript, or within any time given therefor; the date of filing the papers in the court below is wholly omitted from the abstracts; no assignment of error set forth in the printed abstract is accompanied with any reference to any page in transcript or abstract where rulings or exceptions pertaining thereto appear; and the brief of appellants omits reference to the record in respect to facts discussed.

1

The record shows that rules 6, 10, and 26 (33 Utah, vii, viii, xiii, 97 Pac. viii, x), and some other rules of this court, have been disregarded by appellants, causing some inconvenience to opposing counsel. We are not inclined to dismiss appeals, except when it appears that the court is without jurisdiction, or where prejudice may result to the adverse party. The motion to dismiss is therefore denied. Appellants contend that the judgment should be reversed for lack of sufficient evidence to show negligence on the part of defendants, because of contributory negli gence of plaintiff, excessiveness of verdict, improper remarks of plaintiff's counsel during argument, and that plaintiff had given a valid release relieving appellants from all liability.

2

To authorize a review of the evidence the assignment as to sufficiency must specify the particulars wherein it is insuffi