Richards v. Oregon Short Line Railroad Co.

• Decision Date: 11 May 1912
• Docket Number: 2303
• Citation: 123 P. 933,41 Utah 99
• Court: Utah Supreme Court
• Parties: RICHARDS v. OREGON SHORT LINE RAILROAD COMPANY

123 P. 933

41 Utah 99

RICHARDS v. OREGON SHORT LINE RAILROAD COMPANY

No. 2303

Supreme Court of Utah

May 11, 1912

APPEAL from District Court, Second District; Hon. N. J. Harris Judge.

Action by Jesse S. Richards against the Oregon Short Line Railroad Company.

Judgment for plaintiff. Defendant appeals.

REVERSED AND REMANDED FOR NEW TRIAL.

P. L Williams, Geo. H. Smith, Frank Nebeker and H. B. Thompson for appellant.

Richards & Boyd for respondent.

FRICK C. J. McCARTY, J., STRAUP, J., concurring.

OPINION

FRICK, C. J.

Respondent recovered judgment against appellant for damages which he alleged he sustained by the death of two horses which he claimed were killed by appellant through the negligent operation of its locomotive and train of cars. In the complaint, the acts constituting negligence are alleged as follows: That on the 3d day of January, 1910, two certain horses belonging to the plaintiff (respondent) "strayed in and upon the track and ground occupied by the railroad of the said defendant at or near Arimo, in the county of Bannock, state of Idaho; that said defendant, by its agents and servants, not regarding its duty in that regard, so carelessly and negligently ran and managed its locomotive and cars that the same ran against and over the said horses of the said plaintiff and killed and destroyed the same."

From the bill of exceptions it appears that the substance of the evidence adduced at the trial on behalf of respondent tended to show that Arimo is a flag station on appellant's line of railroad in Bannock County, Idaho, at which there are no station buildings, but, at the time of the accident, there was a store known as Henderson's store and a toolhouse, both of which were upon the station grounds. The railroad track runs nearly due north and south through the station grounds, but curves a little to the west about 1200 feet south from the east end of said grounds; that on the night of January 2, 1910, and for some time prior thereto, respondent kept the two horses aforesaid, with some others, in a field immediately east of the station grounds aforesaid; that said field was inclosed by a wire fence, which was in good order and repair immediately before the accident; that some distance south of the store building and toolhouse aforesaid there was a wire gate through which the horses were taken into and from said field. The west fence of said field was constructed along the east boundary line of appellant's right of way or station grounds. There was a private crossing over the railroad track at the point where the gate was located, immediately south of which were cattle guards. There was also a public road south of the station grounds running north and south, and the station grounds were open and unfenced on the south along said road. There was also a private crossing over the railroad track north of the station grounds near which another cattle guard was located, and beyond which the right of way was fenced. The horses in question were last seen in the field by the man who had them in charge and who fed them on the evening of the 2d day of January, 1910, at about five o'clock. The next morning at about eight o'clock a witness for the respondent who lived near the station grounds testified that he saw the horses lying dead some distance north of the store building and toolhouse beside the main track. The man who fed the horses the evening before also testified that he saw them about nine o'clock that morning lying dead as aforesaid. He also says that one of them was lying about 300 yards north of the crossing at which the gate was placed, and the other one a considerable distance farther north, and they both were lying beside the main track. The two witnesses also testified that near to and a little south of the point where the horses seemed to have been struck there were a few, or, as one of them put it, a "row of cars" standing on a side or passing track, which was immediately east of the main track; that, comparatively speaking, there was no grade for 1200 or 1400 feet south of the store building, and for about a like distance to the north thereof; that the headlight of an engine coming from the south could be seen for more than 1200 feet south of where the horses seemed to have been struck and killed. The man who had charge of the horses also testified that the gate spoken of was a wire gate; that on the evening of the 2d of January, 1910, when he left the horses, the gate was closed and in good condition; that on the next morning at about nine o'clock he found the wires on the north end of the gate were either cut or broken off smooth, but he could not tell whether they had been cut or broken; that the gate was down and lying somewhat to the side of the opening, and the horses had all escaped from the field. There is no evidence whatever when or how the horses escaped from the field, nor is there any evidence where the horses went after they left the field, except as it is inferred that at least the two that were killed must have gone onto the railroad track at some moment of time before they were struck and killed. Respondent offered no direct evidence that the horses were struck by a moving train, but that fact was inferred from the fact that there was some evidence on and along the track that the horses were struck and killed by the locomotive and train of cars, and further from the injuries and bruises on the horses themselves. It was also made to appear that the night was cold and there was quite considerable snow on the ground. The respondent, in addition to the foregoing, proved the value of the horses, and then rested.

After a motion for nonsuit had been interposed by appellant and denied by the court, the appellant, in substance, produced the following evidence: The engineer testified that he was in charge of a freight train, which was an extra, and which, in approaching the station grounds at Arimo, was running at about twenty miles an hour; that the train was not scheduled to stop nor did he intend to stop at that station; that he approached the station shortly after eleven o'clock on the night of the 2d of January, 1910, and when he had arrived at or near the toolhouse spoken of his train struck some horses; that the night was "foggy and dark and I could not see anything of them (the horses) until I was about seventy feet, or two carlengths, from the horses." He further said that, when he first saw the horses, they were to the east of the main track, between it and what is called the passing track; that there were a "string of cars," about thirty-five, standing on the passing track, and that these cars prevented him from seeing the horses sooner than he did; that he saw the horses first when he was some distance south of the toolhouse to which we have referred. On cross-examination he said: "I could not say for sure just how close they were to the toolhouse; it was very foggy and dark, and they were standing in the shade of those cars on the passing track." He was also asked by respondent's counsel whether or not he was "using a careful lookout all through there," meaning in passing into and along the station grounds, which he answered in the affirmative. Counsel also asked the engineer what movement, if any, the horses made after he first saw them. He answered: "I thought for an instant they were going to start to run to the west" across the track, "but instead they made a motion to turn to the west and then they turned back towards the cars again." He further says that at about that moment the horses were struck, one of which remained partially on and partially under the pilot of the engine, and which one was carried the farthest north where it was found the next morning by the witness who testified for respondent. The engineer, when pressed further on cross-examination as to how far he could see the horses ahead of the headlight on his train on the night in question, said: "I said on a clear track--I say if there hadn't been anything on the passing track at all the headlight wouldn't have shown more than 100 feet, but, the cars being on the passing track, I could not see these horses until I was about two carlengths away from them--about seventy feet--and I said if the cars hadn't been there I could have seen them 100 feet." The engineer also said that owing to the frost and fog, the track was "slippery;" that he had what is called an acetylene headlight, which was in good condition; and that all the appliances on the train were in good working order.

The brakeman on the train was also called as a witness on behalf of appellant. He testified that in approaching Arimo station he was in the cab with the engineer and fireman that the night was foggy and cold; that in approaching the station he observed that the engineer was keeping a lookout ahead by "leaning out of the side of the cab because he couldn't see through the window;" that the reason the engineer could not see out of the front cab window was because the frost had accumulated thereon preventing him from seeing through it, and for that reason he kept a lookout by leaning out of the side window of the cab on the right or east side of the engine. This witness also says that the engine whistle was sounded at the whistling post about a half mile south of the station; that the track then rounds the curve and after that is straight for about 1100 feet immediately south of where the horses were struck. On being asked to describe the collision, the witness said: "Why, just about where we passed this shanty--this little toolhouse--the engineer threw the brakes on and I threw the window open--it is one of the sliding windows--and I threw that window open and seen some horses jumping out on my side, and I hollered to the...