Holland v. Oregon Short Line R. Co.

• Decision Date: 30 June 1903
• Docket Number: 1419
• Citation: 72 P. 940,26 Utah 209
• Court: Utah Supreme Court
• Parties: JONATHAN HOLLAND, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

72 P. 940

26 Utah 209

JONATHAN HOLLAND, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 1419

Supreme Court of Utah

June 30, 1903

Appeal from the First District Court, Cache County.--Hon. Charles H Hart, Judge.

Action to recover damages resulting from the alleged negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

P. L Williams, Esq., and Geo. H. Smith, Esq., for appellant.

Geo. Q Rich, Esq., and L. R. Rogers, Esq., for respondent.

BASKIN, C. J. BARTCH and McCARTY, JJ., concur.

OPINION

BASKIN, C. J.

--This is an action for the recovery of damages resulting from the alleged negligence of the defendant. The answer, after admitting that it was and is a corporation, denied each and every other allegation of the complaint. It appears from the evidence that the plaintiff, while driving his team, attached to a mowing machine, on the public highway, across the defendant's railroad, at what was known as the "Knowles Crossing," was struck by a moving train of the defendant, thereby receiving a personal injury, his team killed, and the mowing machine broken up. A judgment was rendered in favor of the plaintiff.

1. The first assignment of error is as to the admission, over the objection of the defendant, of the statements of several witnesses that the bell on the train was not rung or its whistle blown at the sugar factory crossing. Among the negligent acts of the defendant, alleged in the complaint, was its omission to blow the locomotive whistle or ring the bell, as required by law and the ordinances of Logan City. Section 447, Revised Statutes 1898, which was in force at and before the time of the injury, provides that "every locomotive shall be provided with a bell weighing not less than twenty pounds, which shall be rung continuously from a point not less than eighty rods from any street, road, or highway crossing, until such street, road, or highway shall be crossed, but the sounding of the locomotive whistle at least one-fourth of a mile before reaching any such crossing shall be deemed equivalent to ringing the bell as aforesaid, except in towns and at terminal points." Counsel for appellant correctly state in their brief that "the absence of the map which was offered in evidence by defendant, and which was one of the exhibits, makes it impossible to show the court what the actual distance was from the [sugar factory] crossing to the place of the collision." That map is not in the record, and from the oral evidence it is impossible for this court to determine whether the distance from the sugar factory crossing to the Knowles crossing was more than eighty rods. This being so, the objection to the admission of the testimony in question cannot be sustained.

2. At the close of the plaintiff's evidence in chief the defendant moved for a nonsuit, which was denied, and the defendant excepted. The ground of the motion was, in substance, that the evidence in chief disclosed gross contributory negligence on the part of the plaintiff. Contributory negligence of the plaintiff was not pleaded in the defendant's answer. The burden of showing contributory negligence is upon the defendant, and to be available as a defense must be specially pleaded, unless it be shown by the plaintiff's testimony. Stone v. Hunt, 94 Mo. 475, 7 S.W. 431; Magee v. North. P. Ry., 12 Am. St. Rep. 69, and note; 5 Ency. Pl. and Pr., pp. 1-3, 10-13. Contributory negligence is a question of law only when the testimony is not conflicting, and is such as permits no reasonable difference of opinion as to its effect; but, "whenever there is any doubt as to the facts, it is the province of the jury to determine the question, or whenever there may reasonably be a difference of opinion as to the inference and conclusions from the facts it is likewise a question for the jury. It belongs to the jury, not only to weigh the evidence and find upon the questions of fact, but to draw conclusions as well alike from disputed and undisputed facts." Beach on Contributory Negligence, sec. 450; Linden v. Anchor Min. Co., 20 Utah 134, 138, 58 P. 355. Therefore, as the defendant failed to plead contributory negligence, a nonsuit was properly denied, unless the character of the testimony in chief of the plaintiff is such that no other inference or conclusion than the contributory negligence of the plaintiff can be reasonably drawn therefrom. But such is not its character. On the contrary, it warranted a rendition of a verdict in favor of plaintiff.

3. The second instruction given to the jury is as follows: "The court instructs you that on the 13th day of August, 1901, there was and still is in force a statute law of this State, reading as follows." The court than read section 447, Revised Statutes 1898, which contains the requirement hereinbefore...