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"65,000 acres of nonmineral, unappropriated and unoccupied land, to be selected and located as hereinafter provided, together with all saline lands in said territory." These are matters worthy of but little consideration. It was entirely optional with Congress to grant Missouri twelve salt springs, or a less or a greater number; New Mexico or Utah all, or only a part of the saline lands, within their respective boundaries. The fact that Congress granted to Missouri only a part of the salt springs within its territory, and to New Mexico all the saline lands found within its territory, can throw no light upon the meaning of the language employed in the Ctah enabling act granting certain lands to it.

We are also referred to the majority and minority reports on the bill providing for the admission of the territory of Utah as a state. Section 8 of the majority report is as it now appears in the statute. A part of section 8 of the minority report is: “And that there be further appropriated one hundred and ten thousand acres of lands for the support of a university, said one hundred and ten thousand acres of land to include saline lands to an amount not to exceed three thousand acres." From this it is argued that one of the questions before Congress was whether the grant of saline lands should be a part of and should be included in the grant of 110,000 acres of lands, or whether the grant of saline lands should be excluded therefrom; that since the minority report in express terms included a grant of saline lands (to the extent of 3,000 acres), and expressly provided that it should be a part of the 110,000 acres of lands, and since the majority report provided for a grant of 110,000 acres of lands, “and including all saline lands in said state,” Congress, by the rejection of the minority report, and by the adoption of the majority report, evidenced an intention to grant 110,000 acres of lands, and also all saline lands in the state. We do not find it necessary to inquire into or consider these reports. The object of all interpretation of a statute is to determine what intention is conveyed by the language employed. If Congress has expressed its intention, in the law itself, with certainty, it is not admissible to depart from that intention on any extraneous consideration or theory of construction. The sense in which the words were intended to be used can be clearly ascertained from their context and the statute itself. We think the language employed clearly and distinctly expresses the congressional intent, and that the statute is free from ambiguity and doubt. There is therefore no occasion to resort to other means of interpretation. We

34 Utah-30

are of the opinion that the judgment of the court below ought to be affirmed, with costs.

It is so ordered.

MCCARTY, C. J., and FRICK, J., concur.

PALMER v. OREGON SHORT LINE R. CO.

No. 1873. Decided November 23, 1908 (98 Pac. 689).

1. RAILROADS—TRESPASSERS ON TRACK-CHILDREN. A railway com

pany's duty to discover trespassers on its track is the same

whether the trespasser be a child or an adult. 2. RAILROADS—TRESPASSERS_COMPANY'S DUTY. On discovering an

adult trespasser, or one of an age of discretion, on the track, an engineer need merely give warning, having the right to assume that the trespasser will leave the track; but when a child or helpless adult is, or in the exercise of ordinary care ought to be, discovered, the engineer must at once act upon the assumption that the child will remain, and, to prevent injury, he must slow down or stop the train before reaching the child, if

that can be done without serious danger to the passengers. 1 3. RAILROADS—RIGHT OF WAY—IMPLIED LICENSES. The public may

acquire an implied license to pass over a railroad right of way by the company permitting such use with knowledge thereof, but to establish such a license the use must have been definite,

long, open and continuous. 4. RAILROADS—RIGHT OF WAY-USE OF TRACK BY PUBLIC-DUTY TO

KEEP LOOKOUT. A railway track need not be used so extensively by the public and for so long a time as to establish an implied

1 Young v. Clark, 16 Utah 42, 50 Pac. 832.

license before the company may be required to keep a reasonable lookout for the persons on the track, such duty depending upon the place and the surrounding circumstances, but the use must be such as to apprise the company that the track is being used

by a considerable number of persons with some regularity. 5. RAILROADS-INJURY TO PERSONS ON TRACK-NEGLIGENCE-JURY

QUESTION. In an action for injury to a person on a railroad track at a point frequently used by the public, where no implied license exists, it is a jury question whether the company has

exercised ordinary care. 6. RAILROADS-INJURY TO PERSON ON TRACK-COMPANY'S DUTY

Law QUESTIONS. In an action against a railway company for injury to a trespasser on a track, whether there was a duty, . where the facts are not in dispute, or, if in dispute, whether those most favorable to the trespasser created a legal duty,

is a law question. 7. RAILROAD'S—PERSONS ON TRACK—COMPANY'S RIGHTS. Generally,

à railway company need not anticipate trespassers upon its tracks outside of cities and towns, nor keep a lookout for tres.

passers. 8. RAILROADS-INJURY TO PERSONS OX TRACK-NEGLIGENCE-JURY

QUESTION. Where, in an action against a railway company for injury to a trespasser on a track, the character of the place where the accident occurred is in dispute, or the evidence is conflicting as to the number of people who used the track and the character of the use, the company's negligence is a jury

question. 9. CARRIERS—PASSENGERS-CARRIER'S DUTY. A passenger stands in

a special relation to the carrier, being on its train by special invitation and under a contract requiring the carrier to carry

him safely. 10. CARRIERS—RIGHTS OF PUBLIC. Any one desiring to avail himself

of a carrier's transportation facilities may do so, and for that purpose may at all proper times and places claim access to its property devoted to that purpose, and in the exercise of that right the company must exercise reasonable care for his pro

tection. 11. RAILROADS—TRESPASSERS_COMPANY'S DUTY. A railway com

pany owes a trespasser no greater duty than any other owner of property would owe in the same circumstances.

12. DEATH-NEGLIGENT DEATH OF CHILD-CONTRIBUTORY NEGLIGENCE.

Contributory negligence may be invoked against a parent suing

for the death of an infant. 13. NEGLIGENCE-CONTRIBUTORY NEGLIGENCE. The defense of contrib

utory negligence is always available against an adult or one having attained the years of discretion.

14. NEGLIGENCE-TRESPASSERS-CHILDREN-TURNTABLES.

An exception to the rule that a railroad company is under no greater duty to discover a trespassing child in peril than to discover an adult trespasser arises in cases of places attractive to chil. dren.2

15. NEGLIGENCE-TRESPASSERS-PLACES ATTRACTIVE TO CHILDREN. A

railroad track in the open country is not attractive nor allur. ing to children within the exception to the rule that a railroad company owes a trespassing child no greater duty to discover

its peril than it owes to an adult trespasser. 16. RAILROADS—TRESPASSING-CHILDREN ON TRACK--EVIDENCE-SUF

FICIENCY. Evidence held to show that a child killed on a rail

road track was a trespasser. 17. RAILROADS—TRESPASSERS ON TRACK—CHILDREN-COMPAXY'S Du

TY. No active duty rests upon a railway company to exercise ordinary care to keep a lookout for children trespassing upon the track.

an

18. RAILROADS-PERSOXS ON TRACK-NEGLIGENCE. Where a railway

company owes no duty to keep a lookout for one on the track,

it is not negligent not to do so. 19. EVIDENCE-EXPERIMENTS-DISTANCE-WEIGHT. In

action against a railway company for death of a trespassing infant on the track, not at a crossing, experiments by witnesses in determining how far away an object on the track could be distin. guished are of little, if any, probative force on the question whether the engineer saw the child sooner than he testified he did, since he must have had the crossing which he was approaching specially in mind, while the witnesses had the objects used in the experiments specially in mind.

20. TRIAL-QUESTIONS FOR JURY. Generally, where the only issue

is whether one saw an object, the question is one for the jury, but in every case there must be some sufficient evidence directly tending to establish the fact to be found, or some facts from

which the ultimate fact may be reasonably inferred. 21. RAILROADS—TRESPASSERS-COMPANY'S DUTY. A railroad com

pany owes no duty to a trespasser other than to refrain from inflicting willful or wanton injury after actually discovering his peril; the duty not arising when the peril might have been discovered, unless the engineer was wantonly negligent in fail.

ing to discover it. 22. RAILROADS—TRESPASSERS--ACTION FOR DEATH-EVIDENCE-SUFFI

CIENCY. Evidence, in an action against a railway company for

2 Brown v. Salt Lake City, 33 Utah 222, 93 Pac. 570, 14 L. R. A. (N. S.) 619.

the death of a trespassing child, held to show that the engineer did not discover the child in time to avert the collision, and

that he was not wantonly negligent. 23. RAILROADS-PERSONS ON TRACK-COMPANY'S DUTY. A railroad

company must use ordinary care not to injure persons on or near tracks in thickly settled parts of cities, towns and villages, where persons have free access to the tracks, and at all other places where the public in considerable numbers habitually have passed over or along the track for considerable time so as to impart notice of their use of the track to the company, or where the company expressly or impliedly permits such

passage. STRAUP, J., dissenting in part.

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by S. J. Palmer against the Oregon Short Line Railroad Company. From a judgment for plaintiff, defendant appeals.

REVERSED AND REMANDED FOR NEW TRIAL.

P. L. Williams, Geo. H. Smith, and Jno. G. Willis for appellant.

Powers & Marioneaux for respondent.
FRICK, J.

Respondent brought this action against appellant to recover damages caused by the alleged negligence of appellant in running a train of cars over and killing respondent's child, of about two years of age, which was on the railroad track near a country road crossing.

The facts developed at the trial are substantially as follows: The respondent at the time of the accident lived in Bannock county, Idaho, on a small farm or ranch about 1 mile east of a siding on appellant's line of railroad, known as Topaz. Respondent's house was about 235 feet south of appellant's track. The country is described as somewhat rough on both sides of the track, and was sparsely settled, there being about ten or eleven families living within a radius of about one and one-half miles from respondent's house, the nearest neighbor being about one-half mile dis

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