118 P. 1009 | Utah | 1911
after stating tbe 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 apr pellant. 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 regardless of whether the cow got on the right of way through the broken fence or the open gate. In his brief counsel for respondent says: “In the first cause of action the evidence showed the fence down and gate open. . . . It is -immaterial whether the heifer strayed on through an inviting open gate or an enticing open fence; . . . either gives the verdict to the plaintiff.”
Comp.’ Laws 190Y, section 456x1, provides:
*621 “Whenever such railroad company shall provide gates for private crossings for the convenience of the owner of the lands through which such railroad passes, such owner shall keep such gates closed at all times when not in actual use, and if1 such owner fail to keep such gates closed, and in consequence thereof his animal strays upon such railroad, and is killed or injured, such owner shall not he entitled to recover damages therefor.”
Under tbis statute, if tbe cow entered upon the right of way through the open gate, appellant cannot be held liable for her loss; there being no evidence of negligence on the part of trainmen at the time she was killed.
/ There is no direct evidence as to where the cow got onto the -right of way. It is conceded, however, that she was killed in the immediate vicinity of the gate mentioned, and, as shown by the evidence, about one mile from the
We are of the opinion that the verdict rendered on the first cause of action is not supported by the evidence, and that the trial court should have directed a verdict for appellant on that cause of action in accordance with appellant’s request. (Rhines v. Chicago, etc. R. R. Co., 75 Iowa, 579, 39 N. W. 912; Morrison v. N. Y., etc., R. R. Co., 32 Barb. (N.
Tbe animals mentioned in the second, third, and fourth causes of action were killed at or near the cattle-guards at the west end of the open switch at Eater. This
The first contention made by appellant regarding the second, third, and fourth causes of action is that Niter is a railroad station to which freight is shipped and where passengers are taken on and permitted to get off the trains; that the convenience of the railroad company, as well as that of the public, require that the station grounds be kept open on the north for a distance of 3600 feet, and, there being no evidence of negligence on the pail; of the men operating the train that collided with the cattle, no recovery can .be had on either of these causes of action. The record shows that in the early part of 1907 a gravel platform was constructed at Niter. Since then some freight has been consigned to and delivered at Niter, and a few passengers get off and on the local train at that point.' At the time the cattle in question were killed, no depot or other building had been erected at Niter. Since the killing of the cattle, appellant has erected a “shelter” near the east end of the switch in question consisting of a “three-sided, one-story, low frame building.” Ne-garding the amount of freight consigned to Niter, N. W. Chiswell, appellant’s principal witness, testified in part as follows: “Since about 1907 . . . there has been but very little freight. I could not say that it averaged one car a
The evidence, without conflict, shows that, because of the lay of the ground along the north side of the railroad track from a point about 500 feet west of the east end of the siding to the cattle-guards on the west, a distance of more than 2500 feet, it is inconvenient to unload freight from the cars. The evidence introduced by appellant shows that for 2000 feet east of the west cattle-guards there is a “borrow pit” running parallel with the railroad track, and because of this pit it is “practically impossible to use the grounds for receiving or delivering freight. Teams could not load or unload along these points.” And the evidence further shows that up to the time of the trial not more than two cars containing freight consigned to Riter were left on the siding at any one time. The evidence does not show, nor is it claimed, that there are any prospects of the traffic increasing at that point. The court, by proper instructions, submitted the question to the jury of whether the appellant left unfenced more ground than was reasonably necessary for station grounds at that point, and the jury, by their verdict, found, and we think properly so, against appellant on that issue.
Counsel for appellant, however, contend that there was no evidence tending to show that the cattle described in the second, third, and fourth causes of action got on the right of way at a point where appellant was required to maintain.a fence. As we have stated, the animals were killed at, or within a few feet, of the cattle-guards at the west end of the open switch or siding. This of itself was sufficient to entitle the respondent to have the question of whether the cattle got on the track at or near that point submitted to the jury. (Thornton R R Fences, etc., section 241; 33 Cyc- 1281, and cases cited.) The evidence, however, without conflict, shows that soon after the animals were killed tracks were found on the right of way at and near the west end of the siding, and none were found at any other point on the right of way. It is conceded that because of the fence and a deep ditch im
We are of the opinion that there is abundant'evidence to support the verdict of the jury on the three causes of action last mentioned, and as to those the judgment is affirmed, but is reversed as to the first cause of action.^/The cause is remanded, with directions to the lower court to grant a new trial on the first cause of action and to'modify the judgment accordingly. Costs to be taxed against appellant.
