Wines v. Rio Grande W. Ry. Co.

• Decision Date: 30 August 1893
• Citation: 33 P. 1042,9 Utah 228
• Court: Utah Supreme Court
• Parties: IRA D. WINES, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

33 P. 1042

9 Utah 228

IRA D. WINES, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

August 30, 1893

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial, Hon. John W Blackburn, judge. The opinion states the facts.

Affirmed.

Messrs Bennett, Marshall and Bradley, for the appellant.

Messrs Evans and Rogers, for the respondent.

MINER, J. ZANE, C. J., and BARTCH, J., and SMITH, J., concurred.

OPINION

MINER, J.:

This action was brought to recover damages alleged to have been occasioned by the defendant negligently running its engine and cars, and killing and injuring several horses and mules of the plaintiff. The complaint alleges five causes of action. In the first cause of action the plaintiff alleges that the plaintiff was the owner of a certain cow. Second. That he was the owner and possessor of four certain horses in May, 1892, of the value of $ 460. Third. That in April, 1892, Joseph A. Thomas owned a certain mule of the value of $ 150. Fourth. That in May, 1892. Michael Vaughn was the owner of a mare of the value of $ 65. Fifth. That in May, 1892, Peter W. Sorenson was the owner of a mare of the value of $ 150; that, on the day named, said animals, without fault of plaintiff, strayed upon the railroad track of the defendant in Utah county, and were killed by the negligence and carelessness of the defendant and its employes; that said Thomas, Vaughn, and Sorenson respectively assigned their said claim for damages to the plaintiff; and that plaintiff was the owner and holder of said claims for damages. Upon the trial the jury found a verdict in favor of the plaintiff upon all such causes of action except the first. The defendant appeals from the judgment and order overruling his motion for a new trial, and assigns many errors. We shall consider only such assignments of error as are discussed in the appellant's brief, and to which the record shows an exception was taken.

The appellant first contends that there was no negligence or want of care on the part of the defendant or its servants, as shown by the proof, and that the verdict was contrary to the evidence, and indicates partiality and passion on the part of the jury; and, second, that the testimony shows that the injury was occasioned by the negligence and carelessness of the plaintiff's servant in attempting to drive the horses across the track without looking to ascertain if a train was approaching. The circumstances attending the killing of the animals described in the second, fourth, and fifth causes of action were detailed by several witnesses. From the testimony offered by the plaintiff, it appears that the railroad track, in the locality where the animals were killed, was almost level and straight for several miles, but passed through a deep cut, nearly a quarter of a mile in length. The train was running in a northerly direction, at the rate of 35 to 40 miles an hour. Plaintiff owned land on both sides of this track, and at or near the place where the animals were killed there had been a public traveled road for 30 years. The railroad company had built a wire fence along this track across this road, and had promised to put in gates, so as to allow plaintiff and others to cross its track over this old traveled road, but failed to do so, whereupon the plaintiff placed wire gates at the crossing, so as to allow his cattle to cross from one piece of land to the other. Shortly after the accident, the defendant placed gates at this crossing. On the day in question, plaintiff's servants were driving his animals over this crossing to the corral on the opposite side of the railroad track, and, while doing so, the horses in question ran ahead of the driver, and got upon the track, there being no cattle guards there, and remained there for a minute or two, while plaintiff's servant was driving a mare and colt out. While the horses were standing there, the defendant's express train from the south eame along, without whistling or ringing the bell or giving the cattle alarm, at the rate of 35 or 40 miles an hour, and without slacking its speed, and, when the horses were in plain view of the engineer for over a half a mile, ran into the bunch of horses, carrying them along from 300 to 600 feet and killing them.

The defendant's witnesses gave testimony tending to show that the whistle was blown about 160 rods from the crossing and place of accident, and that the sound could be heard one mile; that plaintiff's servants knew the time the train was due; that, as soon as the engineer saw the horses coming up the fill upon the track, he "applied the air, and threw the engine on the emergency," and that was all he could do; that he did not give the cattle alarm, because it was too late, as the animals were 80 or 100 yards ahead of the train when first seen; that the accident could not have been avoided; that the train could not have been stopped less than 250 yards; that the engineer never knew of the existence of the crossing. It will be seen from this synopsis of the evidence that there was a conflict in the testimony upon the question of the negligence of the company, and as to any contributory negligence on the part of the plaintiff. The court, in its charge, fairly left to the jury all questions of reasonable care, negligence, and contributory negligence presented by the testimony; and we think properly so, as the question of negligence and want of ordinary care on the part of the defendant was one of the facts for the jury to determine, under all the facts and circumstances of the case, and under proper instruction from the court. So, also, the question as to whether or not the plaintiff, by his negligence and want of ordinary care and caution, contributed to cause the injury, and whether or not there was negligence in the plaintiff which was the proximate cause of the injury, and whether or not the defendant, by the exercise of reasonable care and prudence, might have avoided the consequences of the plaintiff's...