Johnson v. Rio Grande Westerm Railway Co.

• Decision Date: 09 June 1891
• Citation: 7 Utah 346,26 P. 926
• Court: Utah Supreme Court
• Parties: MADS JOHNSON, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

26 P. 926

7 Utah 346

MADS JOHNSON, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

June 9, 1891

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts except what are here given more fully.

The charge of the court was as follows:

On uninclosed land, stock has a right to run across, no odds to whom it belongs. It would have the same right on the railroad right of way as on any other person's land.

"But on enclosed land the law is different; the man who owns land adjoining the railroad or the railroad right of way, it is as much his duty to fence his land off from the right of way, to make a partition fence, as it is the railroad company; it is their joint duty, and I suppose, under the fence law of this Territory, either could force the other to do it.

"So that his stock going on the railroad track would be technically a trespass; but that wouldn't excuse the company from using ordinary diligence, not extra, but ordinary diligence in preventing an accident to that stock. For example, these horses were on this railroad right of way although not rightfully there, it was the duty of the company to use ordinary care to prevent any accident to the animals and if the company didn't use ordinary care, it would be liable for damages to the owner.

"Therefore if you believe from the evidence that the company's servants, in running that train, did not use ordinary care in the handling of the train, taking into account the straightness of the track, the distance the animals could be seen, the danger of accidents to the train and accidents to the passengers--the danger of running the train off the track coming in contact with these animals--taking all these things into consideration, if you think that the company used ordinary care and diligence in the running of that train, it is your duty to find for the defendant. If you think the company did not use ordinary care and that kind of diligence that prudence and good sense would require an ordinarily reasonable man to use, why then it will be your duty to find that the company was negligent, and if you further believe from a preponderance of the evidence that the plaintiff did not by negligence on his part contribute to the accident in any way, it will be your duty to find for the plaintiff, and assess the damages at the value of the animal killed.

But a person don't recover where he is negligent himself, if his negligence contributed to the accident in any way; so, it is a question of fact for you to determine whether this plaintiff was negligent himself in the matter, and whether his negligence contributed to the accident; taking into account that this was a pasture he was entitled to use; taking into account the fact that when he saw the danger he was where he was; taking all the circumstances of the case into account, if you find that his negligence contributed to the accident, you will find for the defendant.

"Therefore the sum of the whole matter, if you believe from a preponderance of the evidence that the company was negligent in its running of the train, and that the plaintiff did not contribute in any way to the accident, you should find for the plaintiff, and assess his damages at the value of the mare; if, however, on the other hand, you find by a preponderance of the evidence that the company used ordinary diligence and care in the running of its train, or that the plaintiff by his negligence contributed to the accident, you should find...