Edmunds v. Salt Lake & L.A. Ry. Co.
| Decision Date | 01 April 1921 |
| Docket Number | 3601 |
| Citation | 196 P. 1019,58 Utah 30 |
| Parties | EDMUNDS v. SALT LAKE & L. A. RY. CO |
| Court | Utah Supreme Court |
Appeal from District Court, Third District, Salt Lake County; J Louis Brown, Judge.
Action by Wilford L. Edmunds against the Salt Lake & Los Angeles Railway Company. Judgment for plaintiff, and defendant appeals.
AFFIRMED.
Bagley Fabian, Clendenin & Judd, of Salt Lake City, for appellant.
Ray Van Cott, of Salt Lake City, for respondent.
Two of plaintiff's horses were run against and seriously injured by a railroad train operated by defendant on its railroad extending from Salt Lake City to Saltair Beach May 31, 1914. The animals were so seriously injured as to render it necessary to kill them immediately after the collision. The railroad at the place where the accident occurred runs through lands owned and occupied by private owners, and said lands were more or less cultivated and improved in the near vicinity of the accident. The lands were not fenced on either side of the road. It appears that plaintiff turned the horses out upon his own premises from which they strayed through an open gate onto the railroad where they were struck by the train.
This is an action by plaintiff to recover damages for the injury. The sole ground of negligence relied on is the failure of defendant to construct and maintain a fence on each side of its road. Defendant contends that at the point where the injury occurred its railroad runs upon a public street of Salt Lake City and that defendant had no authority to fence the same. Defendant also charges plaintiff with negligence in permitting his horses to run at large within the limits of the city in violation of a city ordinance.
The question was tried to the court without a jury. Judgment was entered for plaintiff, and defendant appeals.
Comp. Laws Utah 1917, § 1253, requiring railroad companies to fence their roads, states the law as it existed when the accident occurred. As far as material here, the statute reads:
"Every railroad company operating a railroad by steam, electric, gasoline, or any other mechanical motive power within this state, or which hereafter constructs or operates any such road, is hereby required to erect, within one year, and thereafter maintain, a fence on each side of its railroad where the same passes through lands owned and improved by private owners, and connect the same, at all public crossings, with cattle guards."
The court found that the place of the accident was not within a public street of Salt Lake City, nor was said railroad laid, maintained or operated, at the place of the accident, on a public street in said city. This finding of the court is vigorously challenged by defendant.
The evidence offered by defendant in support of the allegation of its answer that its road is operated upon a public street is open to serious question as to its sufficiency. Defendant first introduced its franchise from the city which describes the route in the following terms:
"Commencing at a point in Fourth West street on the north line of Second South street and running thence north along said Fourth West street to South Temple street, thence west on South Temple street to the city limits."
This evidence was supplemented by the testimony of the general manager of the defendant company, who testified that the road was constructed and maintained along the route set forth in the franchise. This is all the evidence there is in the record on the part of defendant as to whether or not the railroad was constructed and maintained upon a public street.
In view of the statute above quoted, it was the duty of the defendant company to construct and maintain a fence on each side of its railroad unless the case comes within some exception recognized either by statute or judicial interpretation.
The evident purpose of defendant, both in its pleading and in the evidence referred to, was to bring the case within the exception recognized by many authorities to the effect that the obligation to fence does not exist where the road is constructed upon or across a public street within an incorporated city or town. The authorities relied on by appellant are: Rippe v. C., M. & St. P. Ry., 42 Minn. 34, 43 N.W. 652, 5 L.R.A. 864; Meyer v. North Mo. R. Co., 35 Mo. 352; Elliott v. Hannibal & St. Joe Ry., 66 Mo. 683; Rhea v. St. L. & S. F. Ry., 84 Mo. 345; Hurd v. Chappell, 91 Mo.App. 317; Acord v. St. L. & S.W. Ry., 113 Mo.App. 84, 87 S.W. 537; Lee v. Brooklyn Heights R. Co., 97 A.D. 111, 89 N.Y.S. 652; Ryan v. Northern P. Ry. Co., 19 Wash. 533, 53 P. 824; Long v. Central Iowa Ry. Co., 64 Iowa 657, 21 N.W. 122; Lathrop v. Central Iowa Ry. Co., 69 Iowa 105, 28 N.W. 465; Louisville, etc., Ry. Co. v. Francis, 58 Ind. 389; Indianapolis, etc., Ry. Co. v. Warner, 35 Ind. 515; Giltz v. St. Louis, etc., Ry. Co., 65 Mo.App. 445; Rogers v. Chic. & N.W., 26 Iowa 558; International Railroad v. Cocke, 23 A. & E. R. R. Cas. 226; Blanford v. Minneapolis & St. L. Ry., 71 Iowa 310, 32 N.W. 357, 60 Am. Rep. 795.
Assuming that the doctrine stated in those cases is sound, the question is: Does the evidence establish the existence of a public street within the city at the point where the accident occurred? The burden of proof as to the existence of a public street at the point mentioned was upon the defendant. Does the mere recital in a franchise to the effect that the defendant is authorized to construct its road upon a certain street establish the existence of a public street? Does such testimony supplemented by oral testimony to the effect that the road was constructed as set forth in the franchise establish the existence of a public street? Can this court take judicial notice of the fact that South Temple street of Salt Lake City is a public street extending to the western limits of the city? If appellant's contention is correct, one or more of these questions must be answered in the affirmative.
It does seem to the writer, in view of the fact that the trial court found against defendant's contention concerning this question, that the evidence relied on by defendant to overturn the finding is far from satisfactory. Neither in the pleading nor in the evidence is it anywhere admitted by plaintiff that South Temple street is a public street extending to the western limits of the city. Plaintiff's reply to defendant's answer denies the fact, so that it was clearly incumbent upon defendant to prove it as alleged in the answer. The street was not shown to be either platted or recorded; nor was it shown to have been dedicated or laid out as a public street at any point, much less as far west as the limits of the city. In these circumstances we feel that we could be abundantly justified sustaining the finding of the trial court solely because of the failure of defendant's proof respecting this particular defense. We prefer, however, to rest our decision upon broader grounds.
The authorities above cited and relied on by appellant quite generally sustain the proposition that where a railroad runs upon or across a public street within an incorporated city or town the railroad company is not required to fence its track even though the statute requiring it makes no exception. The exception, however, is made by judicial interpretation for the simple reason that a fence in such cases would interfere with public travel and practically amount to a public nuisance in violation of other statutes within the same jurisdiction. For that reason we find that, perhaps, the great weight of authority is to the effect that such statutes, although unqualified in their terms, do not apply to incorporated cities and towns where the road is laid out upon or across public streets in actual use as such by the public. Some Missouri cases even go so far as to hold that such is the law whether the street is used by the public or not. See the following cases herein before cited: Meyer v. Nor. Mo. R. Co., 35 Mo. 352; Elliott v. Hannibal & St. J. Ry. Co., 66 Mo. 683; Rhea v. St. L. & S. F. Ry., 84 Mo. 345....
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