Whitmore v. Rio Grande Western Ry. Co.

• Decision Date: 17 December 1901
• Docket Number: 1089
• Citation: 66 P. 1066,24 Utah 215
• Court: Utah Supreme Court
• Parties: GEORGE C. WHITMORE, Respondent, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellant

66 P. 1066

24 Utah 215

GEORGE C. WHITMORE, Respondent, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellant

No. 1089

Supreme Court of Utah

December 17, 1901

Appeal from the Seventh District Court, Carbon County.--Hon. Jacob Johnson, Judge.

Action to recover damages for the alleged negligent killing, by defendant, on its railroad, of a number of cattle which belonged to the plaintiff. From a judgment in favor of the plaintiff, the defendant appealed.

REVERSED and remanded.

Messrs Bennett, Harkness, Howat, Bradley & Richards for appellant.

Messrs Brown & Henderson for respondent.

BASKIN J. MINER, C. J., concurs in the judgment of reversal. BARTCH, J., concurs.

OPINION

BASKIN, J.

This is an action to recover damages for the alleged negligent killing, by defendant, on its railroad, of a number of cattle which belonged to plaintiff. The complaint contains thirteen separate counts, in each of which the negligent killing by defendant, at a particular date, of a cow which belonged to plaintiff, is alleged. The answer denies the allegations of each count. Judgment was rendered in favor of plaintiff on six of the causes of action stated in said counts.

At the trial, Wm. McGuire, a witness, was asked by plaintiff's attorney: "Q. Did you see during those years--1894 1895, 1896, and 1897--other cattle there killed of Whitmore's, aside from the ones you have testified to?" Defendant's counsel objected to this question, on the ground of its irrelevancy, and as not confining the witness to any particular time. The trial court overruled the objection, and the witness, in answer to the question, stated that, "There has been all the way from 100 to 175 killed each year, so far as I could tell, and some I would not find at all." Defendant's attorney moved to strike out this answer as not material or relevant to the issue and that it was not competent to prove the several counts of the complaint by testimony so general as this. Over like objections of the defendant, John Gentry, a witness for plaintiff, was allowed to testify that during each of the years 1894, 1895, 1896 and 1897, he saw, along the railroad track of the defendant in Carbon county, from 175 to 200 cattle which had been killed. The plaintiff, over like objections, was also permitted to show that the defendant had failed to post and file with the county clerk the notice required by section 68 of the Revised Statutes. After the witness McGuire testified that, "I went to see the section foreman, and told him I wanted to look at his books--the books in which they had kept the marks and brands of cattle killed along the road--and I told him who I represented"--the record shows that the following occurred in the witness's further examination: "Q. (By Plaintiff's Attorney.) What did he say? (Objected to as incompetent and immaterial, not being a competent declaration of the section foreman to this witness, and not being made by the section foreman in the discharge of any duty imposed upon him, and simply hearsay. Objection overruled. Exception.) Q. Did you demand of him the information in relation to this animal? A. Yes. Q. And informed him of the killing, and did he refuse to tell you anything about it? (Objected to as incompetent and immaterial, for the reasons assigned when the question was first asked. Objection overruled. Exception.) A. Yes. Q. State, now, what reasons he gave why he would not? (Objected to as incompetent and immaterial; simply hearsay. Objection overruled. Exception.) A. Said he was notified by...