Reid v. San Pedro, Los Angeles & Salt Lake Railroad Co.

• Decision Date: 24 November 1911
• Docket Number: 2192
• Citation: 39 Utah 617,118 P. 1009
• Parties: REID v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY
• Court: Utah Supreme Court

118 P. 1009

39 Utah 617

REID v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY

No. 2192

Supreme Court of Utah

November 24, 1911

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by Janet A. Reid against the San Pedro, Los Angeles & Salt Lake Railroad Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED IN PART AND REVERSED IN PART, AND REMANDED.

Pennel Cherrington and Dana T. Smith for appellants.

Allen T. Sandford for respondent.

McCARTY J. FRICK, C. J., and STRAUP, J., concur.

OPINION

McCARTY J.

STATEMENT OF FACTS.

This action was brought by respondent to recover damages for the killing of certain cattle by the trains of appellant. Four separate and distinct causes of action are set forth in the complaint.

It is alleged in the first cause of action that appellant's railroad passes through certain lands in Salt Lake County, Utah, owned and improved by private owners; that appellant carelessly and negligently permitted the fence along its line of railroad where the same passes through the lands mentioned to be broken and in poor repair and become down so that cattle had an easy passage through the same; that appellant "carelessly and negligently left and permitted to remain open a gate along the line of said railway at said point, and plaintiff (respondent) does not know, and therefore is unable to state, whether the fence was down or the gate left open, and because thereof a three year old heifer of the plaintiff strayed on the right of way of said defendant company, and defendant so carelessly and negligently operated its train that it ran on and over said heifer."

In the second cause of action it is alleged that at Riter, Salt Lake County, Utah, appellant's railroad passes through lands owned and improved by private owners; that appellant at said point maintains what is called an "open switch;" that on the north side of the track for half a mile where the same passes through the lands mentioned there is no fence along the right of way, and on the south side of the track, and only a few feet therefrom, is a large ditch, and on the south side of the ditch is a fence; that at or near the ends of the open switch a fence runs across the right of way and a cattle-guard is placed on the track between the ends of these cross-fences. It is further alleged that, because of the absence of any fence on the north side of the track, cattle are permitted to go on said right of way, and that on the approach of a train the cattle are frightened and run ahead of said train until they come to the cross-fences, which they follow until they come to the cattle-guards, thence, seeing an open space between the fences, endeavor to pass through and are caught in the cattle-guard and killed by the train; that appellant has maintained said open switch and conditions above described for several years; that on or about the 8th day of December, 1908, four three year old heifers belonging to respondent were, through the negligence of appellant in maintaining said open switch and conditions above described, and through the appellant negligently and carelessly operating said train, run over and killed.

The facts alleged in the third and fourth causes of action regarding the conditions existing at the open switch are substantially the same as those alleged in the second cause of action.

In its answer appellant admits its corporate existence and ownership of the railroad mentioned; admits the killing of the cattle described in the complaint; admits that at Riter it maintains an open switch, and that on the north side of its track at that point for half a mile there is no fence along its right of way; admits the existence of the ditch, the wing fences running across the right of way, and the cattle-guards as described in respondent's complaint; but denies the allegations of negligence contained in the complaint; and, as a further defense, alleges "that at said Riter there is a station and necessary station grounds maintained by the defendant, which said station grounds are kept open and unobstructed to afford necessary and proper ingress and egress to and from said station of Riter."

A trial was had which resulted in a verdict for respondent on each of the four causes of action. From the judgment entered on the verdict, appellant prosecutes this appeal.

McCARTY, J., after stating the facts as above, rendered the opinion of the court.

It is contended on behalf of appellant that the evidence is insufficient to support the verdict because it fails to show where and under what circumstances the cattle sued for got upon the right of way.

The evidence shows that the cow mentioned in the first cause of action was being pastured on land that was fenced, improved, and owned by a private party, and through which appellant's railroad was constructed and maintained; that respondent did not own the land, but was pasturing her stock thereon by permission of the owner at the time the cow was killed; that the fence inclosing appellant's right of way was down and out of repair about one mile west of the point where the cow was killed; that two gates opening into the right of way in the immediate vicinity of the place where the accident occurred, which were installed and maintained by appellant for the benefit and convenience of the owner of the land through which the railroad passes and upon which the cow was being pastured, had been left open almost continuously prior to the accident.

It is not contended, nor even suggested, that these gates, which were in good condition, were used or left open by appellant. In fact, the evidence, what there is on this point, tends to show that the appellant was in no wise responsible for the gates being left open. Respondent contends that the judgment in so far as it is based on the first cause of action, should be affirmed...