Preece v. Oregon Short Line R. Co.
| Decision Date | 30 August 1916 |
| Docket Number | 2816 |
| Court | Utah Supreme Court |
| Parties | PREECE v. OREGON SHORT LINE R. CO. |
Rehearing denied November 23, 1916.
Appeal from District Court, Second District; Hon. N. J. Harris Judge.
Action by John Preece against the Oregon Short Line Railroad Company. From a judgment, both parties appeal; the plaintiff also appealing from directed verdict for defendant.
AFFIRMED on defendant's appeal, and on plaintiff's appeal affirmed in part, and in part reversed, and new trial granted.
Oscar W. Moyle for plaintiff.
Geo. H Smith, Benj. S. Crow, J. v. Lyle, and A. B. Robertson for defendant.
The plaintiff brought this action against the defendant to recover the value of certain horses and cattle which the plaintiff alleged were negligently killed on defendant's railroad in Davis County, Utah, at different times and dates.
There were seven causes of action stated in the complaint. In the first cause of action plaintiff sought to recover the value of a mare that was killed and for the injury of her colt which thereafter died. The mare was killed at a public crossing called Burke Lane. The second cause of action was dismissed by the plaintiff at the trial. In the third cause of action plaintiff sought to recover the value of a cow and heifer which were killed on defendant's right of way about 300 feet north of the crossing aforesaid. It seems the cow and heifer went on the right of way over the cattle guards or between the cattle guards and the wing fence leading therefrom to the right of way fence; the right of way being fenced in with a wire fence. The fourth cause of action was for the killing of a cow at the same crossing at which the mare was killed. In the fifth cause of action plaintiff sought to recover the value of a young Percheron mare which was killed on defendant's right of way, she having gone onto the right of way through a private farm gate which was put in and maintained by the defendant on the land of the owner for the convenience of such owner. With the other two causes of action I am not concerned on this appeal. The mare and colt mentioned in the first cause of action belonged to the plaintiff, while all of the other animals were owned by different persons and were killed at different times and dates, and the several claims were assigned to the plaintiff by the different owners for the purpose of bringing this action.
The plaintiff recovered judgment on the first cause of action for the mare. The court, it seems, did not submit to the jury the question of whether the plaintiff should recover for the colt. The plaintiff also recovered judgment on the third and fourth causes of action. The court directed the jury to return a verdict on the fifth cause of action in favor of the defendant.
The defendant appeals from the judgment in favor of the plaintiff on the first, third, and fourth causes of action, and the plaintiff appeals on the first cause of action in so far as the colt is concerned, and also from the directed verdict and judgment in favor of the defendant on the fifth cause of action.
With regard to the first cause of action the plaintiff alleged the following acts of negligence:
"That the said animals were killed by the carelessness and negligence of defendant in that the defendant failed to use any means to ascertain whether or not said animals were upon the track of said defendant or in a place of danger near its track at said crossing, and failed to use any means to prevent said animals from going upon or remaining upon its track, and in that it carelessly and negligently operated its train at said crossing at a high rate of speed, and failed to stop or lessen the speed of its train as it approached said animals after they were known to be, or in the use of reasonable diligence by defendant's servants in charge of said train should have been known to be, in a place of danger, said animals being visible to the servants of defendant in charge of said approaching train for a long distance, to wit, for about one mile from the place where they were killed."
I remark that while it is alleged that "animals" were killed, the evidence is conclusive that only one was killed by the train at the time alleged in the first cause of action.
Both parties have filed printed abstracts of the evidence, and each contends that the evidence in such abstracts, in some particulars, is stated too favorably for the party making the abstract. In view of that fact I have carefully read the evidence upon the causes of action in question as the same is certified up by the trial judge in the original bill of exceptions.
The evidence relating to the first cause of action is substantially as follows: The plaintiff, in June, 1908, was the owner of a mare of the alleged value of $ 200, and a colt about two months old, which, he alleged, was of the value of fifty dollars; that he kept said mare and colt, with other horses, in a fenced pasture belonging to a neighbor; that on or about the 19th day of June, 1908, said mare and colt escaped from the pasture, and on the evening of said day, or perhaps a day or two later, the mare was found dead at a public crossing called Burke Lane. With respect to the time when the mare was killed the plaintiff testified that on the evening in question From observations made, and from other sources of information, the plaintiff also testified that it was about "twenty-four minutes past eight" when the mare was killed, and that on a clear evening like the one on which the mare was killed, he, at half-past eight o'clock, could see "a horse or a dog for a mile." He also testified that no one, except perhaps the engineer and fireman, saw the accident; that the mare was found dead at the crossing after a passenger train had passed south over the crossing; that the crossing in question was in an open country and a little more than a mile north of Farmington station; that the railroad track coursed in a northwesterly direction and was practically without grade, except perhaps a little upgrade north of the crossing; that the track was straight for about three-fourths of a mile south of the crossing and for about one-half mile north of the crossing from which direction the train in question approached; that a person standing on the track half a mile north of the crossing could see it plainly and could, if he looked, see animals, if there were any, on or near it; that one could see east and west of the crossing for some distance. The witness also testified to the condition of the crossing, but this is best told by his son, who said that he, immediately after the accident, had made special observations respecting the physical conditions at and surrounding the crossing. The young man said that the track at the crossing was raised above the natural surface of the earth approximately three or four feet (other witnesses testified from two and one-half to three feet, perhaps a little more); that Burke Lane was a public highway of approximately four rods in width, and that the driveway or wagon track was graded so as to raise it level with the railroad grade or track; that the raising of the driveway as aforesaid caused a depression or "hole," as he called it, on either side of the crossing, which, he said, "would be maybe three or four feet from the roadbed to the bottom of the place" or depression. The witness further testified that there were cattle guards on both sides of the crossing; that the cattle guards were connected with wing fences, which led down from the cattle guards about thirty-five feet to the right of way fences, the track being fenced on both sides and on both sides of the crossing; that the wing fences, he said, were made out of There was other evidence that the pickets were about five feet high, or perhaps a little higher. He also said, "I don't think they [the engineer] could (have seen the mare) if she had been behind the fence," the picket fence; that is, "if a horse would get down into that hole as I call it (the depression) it would hide itself." The pickets were fastened about four or five or six inches apart, and they were painted white or "whitewashed." Some of the other witnesses testified that the picket fence would not conceal the horse or cattle from the view of those operating a train. The young man said he first saw the mare on the morning after it was killed; that she was lying about sixty feet south of the crossing on the east side of the track, and about fifteen feet from the rails. Another witness, who lived some distance from the crossing, testified that on the evening of the day the mare was killed he saw the mare and colt about six o'clock, or thereabouts, feeding in the lane; that "after sundown and not yet dark" he was told by two men who looked like "hoboes" or tramps that the mare had been killed at the crossing; that it was just before dark; that after he had finished his supper he went to see the dead mare at the crossing; that at the time the mare was killed, as nearly as he could get at the time, an animal could be seen "possibly between a quarter and a half mile." There was no evidence of any kind or character that the mare had actually gone onto the track, or, if she did, when she did so with respect to the time she was struck. The only evidence that she was on or near the track is that she was struck and killed by a passing...
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