Opinion
No. 6983.
Decided February 18, 1948.
DEATH. In action against railroad for death of motorist whose truck stalled on crossing, the right of deceased's sole surviving heirs at law to proceed against the wrongdoer was subject to the defense of contributory negligence. Utah Code 1943, 104-3-11.
See 25 C.J.S., Death, sec. 46; 16 Am. Jur., 88; 44 Id. 710.
Appeal from District Court, Third District, Salt Lake County; A.H. Ellett, Judge.
On petition for rehearing.
Petition for rehearing denied.
For original opinion, see 112 Utah 189, 186 P.2d 293.
R. Verne McCullough, of Salt Lake City, and Don Mack Dalton, of American Fork, for appellants.
H.B. Thompson, Bryan P. Leverich, M.J. Bronson and A.U. Miner, all of Salt Lake City, for respondent.
By petition for rehearing the appellants challenge the opinion of this court rendered November 3, 1947. See 112 Utah 189, 186 P.2d 293. We have carefully considered the questions raised by the petition, and adhere to the rules of law announced in the original decision.
Our attention has, however, been called to part of one sentence in the opinion which is apparently being cited as authority for a holding by this court on issues not involved in this case. So that there will be no misunderstanding as to whether or not our previous opinion was limited to the issues involved in this action, the last sentence on page 303 of 186 P.2d, continuing onto page 304, is deleted. This sentence reads as follows:
"* * * For the purposes of this suit, all that Section 104-3-11, U.C.A. 1943, grants to the heirs is a right to proceed against the wrongdoer subject to the defenses available against the deceased, had he lived and prosecuted the suit. * * *"
There is substituted for the deleted sentence the following statement:
"Under the facts of this case the right to proceed against the wrongdoer is subject to the defense of contributory negligence."
As so amended, the opinion stands and the petition for rehearing is denied.
McDONOUGH, C.J., and PRATT, WADE, and WOLFE, JJ., concur.