Wood v. Railroad. South. 535, 58 L. R. A. 333; Youngblood v. Railroad Co., 60 S. C. 9, 19, 38 S. E. 232, 85 Am. St. Rep. 824; Mateer v. Missouri Pac. Ry. Co. (Mo. Sup.), 15 S. W. 970; Bender v. Ry. Co., 137 Mo. 240, 37 S. W. 132; Gottlieb v. N. Y., L. E. & W. Ry. Co., 100 N. Y. 462, 3 N. E. 344; Sack v. Dolese, 35 Ill. App. 636; St. L. & S. E. Ry. Co. v. Valirius, 56 Ind. 512; Union Stockyards v. Goodwin, 57 Neb. 138, 77 N. W. 357. In the case of Youngblood v. Railroad Co., supra, the trial court refused to charge, as requested by the defendant, that: "If the jury find from the evidence, if there be such evidence, that the cars between which plaintiff is alleged to have been injured were foreign cars (i. e., cars of another company than defendant company), then it is only required of defendant to make an ordinary and reasonable inspection of such cars for any defects which may be discernible by an ordinary examination." In the appellate court it was contended on behalf of the defendant in that case "that said request should have been charged unqualifiedly, as it contained a correct statement of the law applicable to the case, and properly drew the distinction between the duty of the defendant with reference to foreign cars and cars of its own, showing that, as to foreign cars, the duty of the railroad company was not that of furnishing proper machinery for service, and keeping the same in repair, but it is one of inspection only, and was performed when the defendant had made a reasonable inspection of such foreign cars for any defects which might be discernible by an ordinary examination; that the charge of the presiding judge with reference to said request was erroneous, in that it ignored the distinction sought to be made, and drew a comparison only as to the inspection of the respective cars, leaving the general proposition of law as to master and servant, as stated in his charge, to apply alike to foreign cars as well as cars of its own." The appellate court, in passing upon defendant's contention, said: "In the first place, there was no testimony from which the jury had the Wood v. Railroad. right to infer that they were foreign cars; and, in the second place, the proposition embodied in the request was not sound." That it was the duty of the defendant in this case, as held in the case in 170 U. S. 699, 18 Sup. Ct. 777, 42 L. Ed. 1188, before cited, to "use reasonable care to see that the cars employed on its road were in good order and fit for the purposes for which they were intended, and that its employees had a right to rely upon this being the case, is too well settled to require anything but mere statement." We are clearly of the opinion that the eighth and tenth instructions were warranted by the evidence, and correctly stated the law applicable to the case. 4 In respect to the twenty-third instruction, there was no evidence upon which to base a finding by the jury that the defendant's duty of inspection was performed with reasonable care before the plaintiff was injured. C. F. Harris, defendant's inspector, was the only witness who testified that any previous inspection had been made. He testified in chief: "I was on duty on the 8th day of June, 1902, and inspecting cars at that time. I do not remember particularly inspecting car C. P. 90727. I was inspecting a number of cars on that day. I keep a record of all cars that I inspected." The character of the record has already been shown herein. On cross-examination he testified: "I have no particular recollection of that car, outside of my record, nor of the number, so that, in testifying, I am relying entirely upon the record that I made then. It was not until yesterday that my attention was called to the fact that there was some trouble about this car." It is not claimed that any inspection, except that referred to by this witness, was made before the accident. What was done by him in making the inspection was not disclosed, and it appears from his statements that he himself did not know, and that only from his reliance upon the record made by him was he enabled to state that he had ever inspected the car at all. While there 28 Utah-24 Wood v. Railroad. was a radical conflict in the evidence respecting the condition of the car at the time the plaintiff was injured, there was ample evidence to justify the jury in finding that the car was not reasonably safe, and that, by the exercise of reasonable and ordinary care on the part of the defendant, its dangerous condition could have been discovered. We are clearly of the opinion that the trial court erred in giving the twenty-third instruction, because it was inconsistent with the other two correctly given, was not warranted by the evidence, and misstated the law applicable to the case. This brings us to the consideration of the question as to whether or not reversible error was committed thereby. On behalf of the appellant it is contended that, "where conflicting charges are given, it is to be presumed that the jury may have followed that which is erroneous, and the case should for that reason be reversed." It is reversible error to give conflicting instructions only where either of them is prejudicial to the party who properly takes exceptions thereto; but not so when, as in the case at bar, correct instructions are first given, and afterwards another is given at the request of the party excepting, which is favorable to him, but which is erroneous and in conflict with the previous ones. The giving of the erroneous instruction at the request of the appellant was not reversible error. The plaintiff having, in open court, on the day next preceding the trial of the case, made the payment and demand for a new list of jurors authorized by section 1, chapter 132, page 154, Session Laws 1901, the judge, in pursuance of said section, ordered the sheriff to draw from the jury box the names of thirty jurors. The jury impaneled in the case was composed of persons drawn from the jury box and summoned to appear by the sheriff. The defendant objected to the trial of the case by a jury on the ground that both the plaintiff and defendant had waived a trial by jury, by not having demanded the same as provided by section 3129, Revised Statutes 1898. No demand 5 6 Wood v. Railroad. was made by either of the parties in accordance with section 3129. It is contended that, by the failure to demand a jury in accordance with said section, a trial by jury was waived by both parties, and that, thereafter the court's jurisdiction was limited to a trial without a jury, and that therefore the trial had was unauthorized and void. In the case of Whipple v. Preece, et al., 24 Utah, 364-376, 67 Pac. 1072, both sides expressly waived a jury, but the court declined to hear the case without one, and thereupon the plaintiff interposed a challenge. This court, in the opinion delivered by Mr. Justice BARTCH, said: "It is not claimed that any jurors were unfair or biased. The verdict ap pears to be the legitimate result of the evidence. The testimony is not such as to indicate that, if the judgment were reversed, the plaintiff could or ought ultimately to recover. Under all the facts and circumstances of this case, viewed in the light of the provisions of the statute quoted and referred to, we are of the opinion that a reversal because of the irregularity complained of would not be justified. Railroad Co. v.. Frazier, 25 Neb. 42, 40 N. W. 604; Prince v. State, 3 Stew. & P. 253." We are of the opinion that the court below possessed discretionary authority to direct a trial by jury notwithstanding the parties to the suit may have waived the same. The other assignments of error being less plausible than those already passed upon, the record fails to disclose any reversible error. The judgment is affirmed, with costs. BARTCH and MCCARTY, JJ., concur. 28 137 $30 156 Booth & Co. v. Weigand. A. BOOTH AND COMPANY, a Corporation, Respondent, v. G. M. WEIGAND, Appellant. No. 1578. (79 Pac. 570.) 1. Foreign Corporations: Conditions Precedent to Doing 2. Same: Comity. The comity which recognizes the corporate existence of a foreign corporation, and enforces the contracts of that corporation made within the limits of the State affording the comity, will not be extended so as to recognize the exstence of a corporation and the exercise of its powers, when they are inimical to the interest, repugnant to the policy, or in contravention of the laws of such State. 3. Same. It was within the power of the State to enact Constitution article 12, sections 1, 4, 9, and Revised Statutes 1898, sections 351, 352, prescribing such terms and conditions for the tran action of business within the State by a foreign corporation as will render such a corporation amenable to the process of the courts of this State. 4. Same: Certain Contracts Held Void. Constitution article 12, section 1, provides that all corporations doing business in this State may be regulated by law. Section 4 provides that all corporations may sue and be sued as natural persons. Section 9 prohibits corporations from doing business in the State without having a place of business, with an agent, upon whom process may be served, nor without first filing a certified copy of articles of incorporation with the Secretary of State. Article 1, section 26, declares all the provisions of the Constitution both mandatory |