8 Utah 349 | Utah | 1892
In this case trial before a jury was had, a verdict was returned for the plaintiff, a motion made for a new trial, the motion overruled, and judgment, on the verdict, and appeal takeh. The appeal is both from the order overruling the motion for a new trial and the judgment.
The suit was for killing a horse by the engine of the defendant. Tbe evidence was substantially as follows: The railroad track was not fenced where the horse was killed. The land where the killing was done was claimed to be owned by a private individual, but of that there was no evidence; was not fenced or cultivated; and there was no improvement on the land nearer than a quarter of a mile off in one direction, and more than that every other way; otherwise, the country was wild, uncultivated, and used only as range; cattle and horses ran upon and roamed over -it. No other negligence is charged against the defendant company than that it failed to fence its track where the horse was killed. The’ plaintiff bases his right to recover entirely upon a statute of the territorial legislature of 1890, which reads as follows: “Bach and every railway or railroad corporation operating a railroad or any part of a railroad within this Territory is hereby required to erect within ninety days after the approval of this act, and thereafter to maintain, a good and lawful fence on each side of such railroad where such railroad passes through lands owned and settled or occupied by private owners, with good and sufficient cattle guards at all streets or road crossings, to prevent live stock from
Chief Justice ZANE dissents from this opinion, and thinks this case ought to be affirmed, because the evidence shows it was a thickly settled region and the decision ought not to be based upon such a narrow construction of the law. The court being equally divided this judgment is affirmed.