Bunnell v. Rio Grande W. Ry. Co., 666

• Court: Supreme Court of Utah
• Writing for the Court: BARTCH, J.:
• Citation: 13 Utah 314,44 P. 927
• Parties: SAMUEL BUNNELL, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT
• Docket Number: 666
• Decision Date: 09 April 1896

44 P. 927

13 Utah 314

SAMUEL BUNNELL, RESPONDENT,
v.
RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

No. 666

Supreme Court of Utah

April 9, 1896

Appeal from the district court of the First judicial district, Territory of Utah. Hon. W. H. King, Judge.

Action by Samuel E. Bunnell against the Rio Grande Western Railway Company for damages sustained through the killing of a cow by defendant's train. The facts are set forth in the opinion. From a judgment in favor of plaintiff, defendant appeals.

Reversed and remanded.

Bennett & Bradley, for appellant.

An engineer is not called upon to stop because cattle are near the track or a bridge and may step onto it, or if stopping is more dangerous than proceeding, he may even increase his speed. 13 Eng. and Am. Ry. Cases, 519; 19 Eng. and Am. Ry. Cases, 512; 45 Eng. and Am. Ry. Cases, 496.

Turning cattle into the highway, unattended, in the vicinity of a railroad is negligence, and he could not demand that the defendant should herd his cattle and take care of them. Flint v. Pere & M. Ry. Co., 79 Mich. 323; 45 Eng. and Am. Ry. Cases, 496.

There is some conflict of authority as to whether contributory negligence must be alleged. In this case the plaintiff alleged that his cow was lawfully on the highway and the defendant denied it. Where the plaintiff's proof shows his negligence, all the cases, so far as we know, hold he must take his case as he makes it, and if he cannot make a case without showing he was in fault, he cannot recover or put the burden on the defendant as to plea or proof. Cay v. Winter, 34 Cal. 153; Cunningham v. Lyness, 21 Wis. 245, 55 Wis. 406.

J. W. N. Whitecotton, for respondent.

Contributory negligence is an affirmative defense and must be alleged and proved by the defendant. Hough v. Railway Co., 100 U.S. 213; Indianapolis, etc., R. R. Co. v. Horst, 93 U.S. 291; Railroad Co. v. Gladman, 15 Wallace 401; Anderson v. Ogden Ry. Depot Co., 8 Utah 128.

Beach on contributory negligence, Sec. 426, where the author cites the decisions of twenty-five American states besides the United States supreme court, and England in support of the doctrine. Shearman & Redfield on Negligence, sec. 109.

The case of Robinson v. Flint & P. M. Ry. Co., 79 Mich. 323, cited by appellant, shows that the plaintiff had turned his ox out to graze in the public highway, and it thereby became a trespasser upon the railroad company's right of way, where it crossed the highway. The ox was not lawfully upon the highway, and the plaintiff was held guilty of contributory negligence. Besides, in Michigan, it is held that the burden is upon the plaintiff to show that he is free from negligence before he can recover. Detroit, etc., R. R. Co. v. Van Steinburg, 17 Mich. 99; Lake Shore, etc., R. R. Co. v. Miller, 25 Id. 275; LeBaron v. Detroit, etc., R. R. Co., 67 Id. 677.

Is there in this case any issue of contributory negligence? Clearly not, unless in the following: "In this case, the plaintiff alleged that his cow was lawfully on the highway and the defendant denied it." But did not the plaintiff by his evidence make good his allegation? Is it not lawful for a cow to travel a county road to the pasture, when it is the only road by which she can reach the pasture? It will not be seriously claimed that to deny the cow's lawful presence on the road is to charge contributory negligence beyond what would result from the unlawfulness of her presence there. There is no pretense of a general or specific charge of contributory negligence outside of that one general denial. If plaintiff had alleged that the cow was killed without fault or negligence on his part, and defendant had made a general denial, it might be that contributory negligence would have been an issue.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION [44 P. 928]

[13 Utah 317] BARTCH, J.:

The plaintiff brought this action to recover damages for the killing of a cow by the defendant on its railroad, and obtained judgment therefor. The appeal is both from the judgment and from an order denying a motion for a new trial. The killing of the cow is not disputed, and the material facts shown by the testimony of the plaintiff are, substantially, that the plaintiff resides on a farm; his house being about a quarter of a mile north [13 Utah 318] of the Provo river, and 300 yards west of the defendant's railroad track, and 40 yards south of a public road running east and west, and crossing said railroad. He had a lucern meadow about 350 yards east of the track, where he pastured his cows, which were generally driven there by his dog, after they had been turned out on said public road. The road was fenced on both sides to a point 200 yards east of the railroad, and at the railroad crossing it is elevated a little above the general surface, and there is a slight depression below such surface, between the road and a wing fence which extends west from the cattle guard, on the north side of the road. This depression was caused by removing the ground for the grade of the road and railroad, and has gotten into a swampy condition. The wing fence and the cattle guard, on the north side, run nearly parallel with the road, and the railroad track is straight for about a mile north of the crossing. The Union Pacific Railroad is about 80 yards west of the defendant's track. Between 11 and 12 o'clock on the 7th of January, 1895, the day of the accident, the plaintiff turned 12 head of his cattle out into the road,--it being the only way by which they could get to the lucern meadow,--but sent no one to drive them. His dog, however, followed them to a point between the two railroads; and then the plaintiff saw it...