Knight v. Southern Pacific Co.

• Decision Date: 12 April 1918
• Docket Number: 3172
• Court: Utah Supreme Court
• Parties: KNIGHT v. SOUTHERN PACIFIC CO

172 P. 689

52 Utah 42

KNIGHT v. SOUTHERN PACIFIC CO

No. 3172

Supreme Court of Utah

April 12, 1918

Appeal from District Court of Weber County, Second District; Hon. A E. Pratt, Judge.

Action by William Knight against the Southern Pacific Co.

Judgment for plaintiff. Defendant appeals.

REVERSED and cause remanded with directions to grant a new trial.

George H. Smith, J. V. Lyle and B. S. Crow for appellant.

Skeen &amp Skeen for respondent.

FRICK C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

The plaintiff brought this action against the defendant to recover damages for the alleged negligent killing of certain horses. Five causes of action are set forth in the complaint. The first one was for horses killed that were owned by the plaintiff, and the other four causes of action were assigned to him by two of his neighbors and his two sons for the purpose of prosecuting the action. The horses belonging to the two sons and to the neighbors were killed at the same time that plaintiff's horses were killed.

The complaint is too long to be set forth even in substance. It must suffice to say that the complaint is based upon the theory that the defendant was guilty of negligence in not keeping in good repair a certain wing fence at plaintiff's private farm crossing. It is alleged in the complaint that the defendant had agreed to make and to maintain what in the record is called wing fences at a private subway crossing on plaintiff's farm. The case was tried and submitted to the jury on that theory. No contention was made by plaintiff that the defendant could have avoided the killing of the horses in the operation of its train after they got onto the right of way and track of the defendant, but the case was submitted to the jury upon the theory that defendant's negligence consisted in not maintaining the wing fences as hereinafter explained.

The defendant denied the alleged agreement to maintain fences and its negligence as alleged, and pleaded that plaintiff's own negligence, as hereinafter explained, was the sole cause of the killing of the horses.

There is little, if any, conflict in the evidence, which tended to establish the following facts:

In 1902 the plaintiff entered into an option agreement in writing with the Central Pacific Railroad Company, the predecessor in interest of the defendant, whereby he agreed to sell a strip of ground 100 feet wide through his farm for a right of way for railroad purposes. The option agreement was subsequently merged into a deed. Neither the option nor the deed was produced in evidence by either party, and the evidence is not as clear as is might be respecting the terms of the option agreement. After the option agreement had been entered into the defendant constructed a railroad track upon the right of way aforesaid, and ever since the completion of the railroad has operated the same. The evidence also tended to show that in said option agreement it was provided that the Central Pacific Railroad Company should construct a farm crossing on plaintiff's land with gates in the right of way fences and with cattle guards on the track. Such a crossing was thereafter constructed. About the year 1905 the defendant company removed the cattle guards or pits, as they are called in the evidence, and plaintiff then went to Ogden, where defendant maintained an office, for the purpose, as he says, of having the farm crossing removed from the place where it was originally placed to another point on his farm, at which point the conditions were such that a subway crossing, that is, one passing through under the railroad track, could be put in. With respect to what was said and done in that regard, the plaintiff, as appears from the bill of exceptions, testified that he went to Ogden and inquired for the defendant's claim agent. He said:

"I was directed to the place where his office was and I went there. He wasn't there. They said the claim agent was in California. There was a man in there who had charge of the office, I don't know who he was. Q. What did you say to him? A. Well, I stated that they had filled up--took out the cattle guards, and the stock was getting--had been damaged some; one or two killed. And they said they was taking them out all along the road, and they wouldn't put them back again. So I proposed that if they would get chains and locks I would lock the gates that went over the tracks, providing they would put in gates under this subway and fence from the main line to the abutments there so that I would have a road from one pasture to the other that stock couldn't get on the track."

In answer to the question of what was done respecting the crossing, plaintiff further said:

"I found it fixed as I requested them to do it. Q. Just tell us how it was fixed. A. Well, the chains were lying there, they had thrown them off of the train, I suppose; anyway, I got them and put them on the gates that went over, and the fences had been cut opposite the runway under there and gates put in and fences from the abutments to the main fence so that I had a clear way under."

The following rough sketch or plat will make clear to the reader what the witness meant in his statements:

[SEE ROUGH SKETCH IN ORIGINAL]

The two outside lines on the plat represent the right of way fences. The lines W W W W represent the wing fences leading from the right of way fences to the bridge marked B on the plat. The parallel lines in the center of the plat represent the railroad track, and the lines g g represent the gates that were put in the right of way fences on each side of the track.

Plaintiff's farm, which was principally used for pasture, lies on both sides of the track. There was a washout, or what is designated an old arm of the Weber river, which was dry most of the year, over which the bridge, B, was constructed, and which washout constituted the subway spoken of by the plaintiff in his testimony. The plaintiff desired the subway so that in case he opened the gates g g his horses could pass under the bridge, B, from one side of his farm to the other.

In answer to his counsel plaintiff further testified:

"Q. I want you to state fully what the substance of your conversation was with the man in that office. A. Well, now, that has been so long ago that I don't remember just what it was, but then they came down there and fixed this gate; it complied with my request from them, and I just let it go; I never paid any more attention. Q. Now, do you remember what you said and what you asked them to do there in the office, upon condition of the closing of the crossing lower down? A. Well, I asked them to make me a runway under there that I could take my stock through and I would lock the other gates up. And they did so; that is, it was done when I went down. Q. How was it done with respect to the manner in which you requested it to be done? A. Well, it was done just as I wanted it done with the fences and the gates."

On cross-examination, with respect to what was said at the office at Ogden when he went to see the claim agent about changing the farm crossing, the plaintiff further testified:

"No; I didn't make any agreement with them at all. Q. There was no agreement made as to the wing fences? A. I just told this man what I would take for the road over, and when I went down--I didn't know whether he would do it or not; he just took an item of it, and I suppose he reported it, for when I went down it was done. Q. Oh, that is the reason that you said before that you didn't make any agreement. A. Why, no. I say now I didn't make any; that is, they didn't agree with me to do it. I just told them what I would accept for the other (crossing) for taking the pits out of there. * * * Yes; I didn't find the man that was authorized to make any agreement with me. Q. And this man that you talked to was not authorized to make any agreement with you? A. I don't suppose he was. He said he would report. Q. And you didn't talk to anybody else about it, did you? A. No."

The plaintiff further said that about two weeks after he had spoken to the man in the office at Ogden he went to the place where the original crossing had been put in, and found chains lying on the ground with which he fastened the gates that were originally put in the right of way fences.

It was also made to appear that the old or original crossing was not entirely abandoned, but was left so that it could be used in case of high water or in case of other necessity.

It was further shown that plaintiff's two sons and two of plaintiff's neighbors had some horses in plaintiff's pasture which were pastured by him for a stipulated price per month; that some time early in the month of May, 1916, by reason of a freshet or high water which was then prevailing the support or soil which supported the posts upon which the wires were strung for the wing fences at the point marked a on the plat was washed away, and the wing fence, at the point aforesaid, was, by the floating debris in the water, caused to fall over and lie flat on the ground, which left an opening from the subway onto defendant's right of way; that on August 1, 1916, in the nighttime, some time after midnight, plaintiff's horses, together with other horses sued for in this action in the four assigned causes of action, and which belonged to plaintiff's two sons and two of his neighbors, passed out of the pasture through the south gate, which, by some person unknown, or by some unknown agency, was opened, as indicated on the plat, and the horses passed through said gate and onto the subway, and from thence over the wing fence that was lying flat on the ground onto defendant's right of way and on the track, and some of them were fatally injured, while others...