Cummings v. Hines , 57 Utah 382 ( 1921 )

FRICK, J.

The plaintiff brought this action to recover -the value of 35 head of sheep, which were killed through alleged negligence in the operation of a passenger train over the line of the Los Angeles & Salt Lake Railroad at a high rate of speed, and in not arresting tbe speed of tbe train or stopping tbe same so as to permit said sbeep to pass from tbe track, over which they were being driven, on February 19, 1918, in Tooele county. The defendant denied tbe alleged negligence, and as an affirmative defense set up contributory negligence on tbe part of plaintiff’s herder in negligently driving said sbeep onto tbe track at the time and place aforesaid. A trial to a jury resulted in a verdict in favor of tbe plaintiff, upon which judgment was duly entered, from which tbe defendant appeals.

While a number of errors are assigned, only three are argued in defendant’s brief:

(1) “That the evidence is' insufficient to support a finding of negligence on the part of the defendant;” (2) that plaintiff’s herder who was in charge of the sheep was guilty of contributory negligence as a matter of law, which was the proximate cause of the accident; and (3) that “the jury’s finding as to the damages is contrary to the úncontradicted evidence, and there is no evidence whatever to support it.”

In view that the judgment must be reversed for the reasons hereinafter stated, and for the further reason that we are in doubt respecting the first assignment, no purpose could be subserved in discussing that assignment of error at this time, and hence we refrain from doing so. In referring to the evidence we shall refer only to that part which relates to the second assignment, omitting, so far as possible, all reference to the alleged acts of commission or omission on the part of the railroad operatives.

The evidence is without dispute that the land at and for some distance surrounding the place where the accident occurred was still a part of the public domain, and was open country, covered with sagebrush and other verdure; that the open country extended about 12 miles east and about 1% miles west of the railroad track to the mountains, and perhaps for similar distances north and south along both sides of the track; that the territory aforesaid at the time was, and for a number of years prior thereto had been, used for a winter range for sheep in considerable numbers; that the plaintiff ranged about 2,000 head of sheep at said place all of which were in charge of and under the control and direction of a herder; that from and after the 25th day of January to the 19th day of February, 1918, the herder drove the herd of sheep back and forth at different points of the track from the east side to the west side thereof and back • again; that, according to the herder’s statement, the sheep were driven westerly to the mountains to obtain snow in place of water, and after they had been “snowed,” as he called it, they would be driven back again to the east side of the track; that the country is wild, open country, without any habitation to speak of; that the sheep, the herder said, were thus driven “almost daily” from one side of the track to the other; that at the place where he drove the sheep across the track on the day of the accident the track ran north and south, and he could see the trains coming in his direction for about one mile and perhaps a little farther; that he knew there wére several passenger trains passing in each direction daily, and he knew the time of day the train which killed the sheep in question usually passed that point, that for several days it had been running late, some days as much as an hour; that on the day of the accident, at about noon or a little after, and at about the time the fast passenger train was due from the south, the herder drove about 2,000 head of sheep from the west to the east side of the track; that he drove them somewhat leisurely across the track, and when all were across except about 200 head he saw the passenger train coming “through a cut” and “around a bend” about a mile to the south at great speed; that some of the sheep were on the track crossing over it and some others of the 200 ran onto the track in front of the approaching train when it whistled, so that 28 were killed outright and 7 more injured so that they died. There was no crossing at the place where the accident occurred, but the sheep, as before stated, had been driven back and forth over the track for the purpose stated. It also appeared that the engineer in charge of the train knew that the herd of sheep in question and some other herds were ranged over the territory aforesaid, and that the herd in question Fas in charge of a herder, The herder said he thought the train was about an hour late on the day in question, and it was in fact about 45 minutes late. The day was clear, and there was nothing which prevented the herder from driving the herd across the track at any other time, either before the ¡time of the arrival of the train or after that time.

Defendant’s counsel insist that in view of the foregoing undisputed facts the herder was guilty of negligence as a matter of law, and that such negligence was the proximate cause of the accident. Keeping in mind the fact that the sheep were in charge of and under the direct control of the herder, which fact was known to the engineer, and that there was no public or other crossing, and no habitation 1 at or near the place of the accident; that the herd er knew the precise schedule of passing time of the' train in question; that it was a fast passenger train; and that he had practically all of the day in which he could in perfect safety have driven the sheep across the track at any point within several miles distance north and south — -we can see no escape from counsel’s contention. While it is true that the point at which the sheep were being herded was still a part of the public domain, and that it did not constitute an actionable trespass for the herder to drive the sheep onto the right of way of the defendant or over its track, yet it is also true that the defendant had the exclusive right to the use of the track at all times at the point of the accident, and that the right of the sheep owners in passing over the right of. way and track did at most amount to a mere temporary license to pass, and was thus a mere qualified right, subject to the rights of the defendant. This is not a case where for a long period of time the track had been used with the knowledge and consent of the defendant by the public, or by a considerable number of persons for a special purpose, so that a right of passage had been created. Moreover, in the case at bar the track was not being used at any particular point or place as a crossing, but was being crossed at any point where, for the time being, it was most convenient for the sheep to be driven across from one side of the track to the other for the purposes before stated. Under such circumstances those who used the track for tbe purpose of crossing were required to do so at times and places where the track was not being used, or likely to be used, by the defendant. In view of those facts, the defendant was under no special duty to maintain a constant 2 watch or lookout for those who might be passing over the track, but was required to exercise ordinary care only in that regard, and to the end that injury would not be inflicted after the operatives of the train knew, or, in view of the duty imposed upon the defendant as aforesaid, should have discovered that any one using the track or any animal passing over it was in peril of danger. The law applicable under the circumstances just referred to is well stated by the Supreme Court of Wyoming in the case of Martin v. C., B. & Q. Ry. Co., 15 Wyo. 493, 89 Pac. 1025, where, in the course of the opinion, it is said:

“It may be conceded, and this court has held, that cattle upon the open range, which stray upon and depasture the uninclosed land of a person other than their owner, are not trespassers to the extent that an action would lie in favor of the owner of the land. So it may he said that injury to the right of way of a railroad by cattle under like conditions would not be actionable trespass. It does not, however, follow that because no action is given under such circumstances the cattle are so lawfully upon the right of way as to make the railroad company an insurer of their safety. The plaintiff is presumed to have known that in the absence of a fence the cattle would be liable to stray upon the right of way and be killed; he was equally chargeable with notice that there was no obligation, so far as the damage here complained of is concerned, to keep the fence in repair, and that it was liable to become defective and insufficient to turn his stock. Charged with such knowledge, he took all risk in permitting his cattle to run at large, of injury to or destruction of them by mere accident, but no risk of such injury or destruction by defendant’s negligence. Kerwhacker v. C., C. & C. R. R. Co., 3 O. St. 172. It should be borne in mind that the rules governing liability for injuries at railroad crossings are predicated on different premises.”

To the same effect is C., B. & Q. Ry. Co. v. Cash, 24 Wyo. 316, 157 Pac. 701.

The rule respecting the liability of a railroad company for killing sheep which have passed onto its tracks and which were in charge of and under the control of a herder is also well stated by tbe Supreme Court of Oregon in the ease of Keeney v. O. R. & N. Co., 19 Or. 291, 24 Pac. 233, 42 Am. & Eng. R. R. Cases, 619, in the second headnote, which correctly reflects the decision, in the following words:

“Stock in charge of herder — Contributory negligence. — Stock in charge of a herder and subject to his control is not stock running at large, as the places whither they wander and feed, or lie down to rest, are selected by him and subject to his direction and control; and if he voluntarily drives and leaves them uncared for in a place of danger along a railroad track where injury is likely to happen to them as a probable consequence, and they are killed, his act will be regarded as the proximate cause of the injury, and preclude the owner from recovery.”

Cases in support of the rule are cited in the opinion. See, also, 3 Elliott, Railroads'(2d Ed.) § 1209, under the heading of “Contributory Negligence respecting the killing of animals on railroad tracks.” It is there said:

“Stock in charge of a herder who permits them to escape and wander upon a railway track where they are injured will be regarded as injured because of the negligence of the herder in suffering them to escape, and for their injury the company is not liable.”

It certainly is most unreasonable to contend that one in whose charge sheep are placed may drive them over or onto a railroad track, at a time when he knows a fast passenger train is due, without being charged with negligence. Indeed, in view of what might happen to the passengers in case of a collision, such conduct might well be characterized as negli-' gence. While plaintiff’s counsel in their brief assert that the herder’s conduct did not constitute negligence, yet they fail to cite any authority in support of their contention, and, in the writer’s judgment, none could be cited. Moreover, it is not easy to perceive why the public who must ultimately pay the cost of operating railroads should be called upon to bear the burden, where, as here, there was no necessity whatever for driving the sheep, over the track at the time it was done.

We remark that, in view that there is no claim made by either side respecting the doctrine of discovered peril, or what is commonly called the last clear chance doctrine, we have purposely refrained from alluding to or discussing that doe-trine. It may be said in passing, however, that in view of tbe state of tbe record as it now stands and of tbe duty tbe law imposes upon the engineer under tbe circumstances disclosed, and in further view of tbe fact that neither side has alluded to or discussed tbe doctrine referred to, it would, to say tbe least, be very unfair to tbe party against whom tbe question were decided to pass upon that question at this time. We therefore refrain from so doing.

This brings us to the last assignment, namely, that there is no evidence in support of the amount of damages allowed by the jury. It is true that there is no evidence in support of the precise amount awarded, but there is ample evidence in support of a larger amount. It is quite clear that what the jury attempted to do in this case was to divide the loss between the plaintiff and the defendant, and. therefore allowed the plaintiff somewhat in excess of one-half of the proved value of bis sheep. In all probability in arriving at that conclusion the jury was prompted to do so by the conduct of the herder in driving the sheep across the track at the time and in the manner be did. The mere fact, however, that the jury allowed the plaintiff damages in an amount less than they might, under the evidence, have done, is not sufficient in itself to set aside their verdict at the request of the defendant. In that respect the defendant is the 3 favored party, and in the eye of the law has not been injured in a substantial right, and therefore cannot complain because the amount allowed was less than should have been allowed if, as a matter of law, the defendant was otherwise liable in damages. Nor is the fact that the plaintiff might have successfully assigned error upon that question sufficient reason for permitting the defendant to do so.

For the reasons stated, the judgment is reversed, and the cause is remanded to the district court of Salt Lake county, with directions to grant a new trial, defendant to recover costs of the appeal.

CORFMAN, C. J., and THURMAN, J., concur. GIDEON, J., concurs in the order reversing the judgment and remanding the case for a new trial. WEBER, J., being disqualified, did not participate herein.