88 P. 1 | Utah | 1906
- Tbis is an action for damages for the killing of a cow arising through the alleged negligence in operating a train of cars. The plaintiff (hereinafter styled “respondent”), commenced this action for damages which he claims to have sustained by reason of the defendant (hereinafter called “appellant”) in carelessly and negligently running one of its trains onto and over a public highway crossing by running the same at a high and reckless rate of speed, and by negligently failing to ring a bell or sound a whistle at said crossing within the distance required by section 447, Revised Statutes 1898; that by reason thereof appellant ran said train over a cow belonging to respondent, and in doing so maimed and crippled it to such an extent that it had to be killed, and therefore was of no value, by reason of all of which respondent claimed damages in the sum of $45. The defendant denied all negligence and pleaded contributory negligence on the part of respondent. Upon these issues there was a trial to a jury, which eventuated in a verdict and judgment for respondent. Appellant filed its motion for a new trial, which was overruled; and, after preserving the evidence by proper bill of exceptions, now presents the case to this court on appeal from the judgment.
Counsel for appellant, in the abstract, assign several errors, but in their brief and on the oral argument argued
The only evidence upon the subject of contributory negligence was elicited from the respondent while a witness in his own behalf, and is substantially as follows: That the cow in question was turned into a pasture near appellant’s railroad track, and was in that pasture on the morning of the day in question; that the cow had a calf about two months old, and that the respondent had disposed of the same two or three days preceding the accident; that the cow was somewhat restless on account of being'parted from her calf, and in consequence made some efforts to get to the bam where the calf had been kept; that a day or two before the accident the cow, while confined in another pasture, had gotten out of it some•how, not disclosed by the evidence, and had come to the barn of respondent ánd exhibited signs of wanting to get to her calf. The inference from the evidence — and it is only an in
The only question in tbis case, therefore, is: Does tbe un-controverted evidence present a case from which any inference of negligence on tbe part of respondent can be drawn ? We think not — for two reasons: (1) Because there is nothing in tbe evidence from which it can be reasonably inferred that tbe respondent was guilty of any act or omitted doing anything that an ordinarily prudent person, under tbe same or similar circumstances would not do or omit to do; (2) because tbe fact that tbe cow was at large did not directly contribute to tbe accident, and therefore was too remote to be considered by tbe jury. No principle, of law is, we think, better established than tbe pne that negligence, either primarily or contributory, must in some way be connected with tbe act, or omission to act, in respect to tbe matter which causes tbe injury complained of. Tbe very term “contributory negligence” assumes that it is contributory only to some other act or omission which constitutes negligence in tbe opposite party. In what way, therefore, can it reasonably be said that tbe fact that tbe cow was at large in any way directly contributed to tbe collision? It is true that, if she bad
The judgment, therefore, is affirmed, with costs.