heavy, and he desired to divide the drive to Logan by stopping over night at the ranch; that he followed the main traveled road leading from Newton to Benson Ward and arrived at the ranch after dark, it requiring about two and one-half hours to make the trip, that on arriving at the ranch he stopped, left his wagon standing in the roadway, turned the horses he was leading into the pasture, put his team into the barn, and went into the house, where he remained over night; that he arose about five o'clock the next morning and proceeded to Logan, where he arrived and put up his team at the public tie yard about seven or eight o'clock.

The state sought to connect the defendant with the crime by showing (1) that his team and wagon corresponded in size to the team and wagon with which the stolen wheat was hauled from the Godfrey farm, as indicated by the tracks made by the latter outfit; (2) that the left front foot of the defendant's off horse was unshod and to that extent correspended with the off horse of the team used by the party who committed the larceny; (3) that the load of wheat taken to Logan by defendant was of the same kind and class as the wheat that was stolen, and different from the wheat that defendant raised on his farm near Newton, from which he claims the load he sold to Thatcher Milling & Elevator Company was made up. The evidence on these points standing alone, or when considered in connection with the other facts and circumstances of the case, wholly fails to connect the defendant with the larceny of the wheat.

Ezra Eames, who at the time, was a policeman of Logan City, received information on November 5, 1909, that the wheat had been stolen, and he immediately went to the feed yard and examined defendant's outfit. Mr. Eames was called as a witness by the state and testified in part as follows: "I examined the team quite closely and went around them the best I could. No one else was present the first time I examined them. I raised up the feet, and I looked for the ones that had shoes on. The off horse I think had its front shoe off, and I think it had its hind shoe off; that is the best I re

39 Utah-16

member. The next time we examined the horses the marshal took up their feet, and I believe I says, 'Oh, that horse has some shoes off."" And on cross-examination he said: "My best recollection is that one of the horses had two shoes off, one off the front foot and one off the hind foot."

N. W. Crookston, sheriff of Cache County, another witness for the state, testified that he saw the defendant "that night (November 5th) at Logan ;" that he examined defendant's outfit at the feed yard; and that (quoting) "there was a horse shoe in the jockey box that would fit the horses. I observed the defendant's horses. The way they stood in the stable the off horse's front shoe was off the left foot. The

shoe in the jockey box was rusty."

It will thus be observed that according to the evidence introduced by the state one horse of the team that hauled away the grain stolen from the Godfrey farm had but one bare foot; whereas, one of the defendant's horses had two bare feet. True the sheriff testified that when he examined defendant's horses at the feed yard "the way they stood in the stable the off horse's front shoe was off the left foot." But this testimony is not necessarily in conflict with that given by the witness Eames on the same point. It will be noticed that the sheriff did not say that the horse may not have had two bare feet, as testified to by Eames.

It might be well to observe at this time that the state introduced evidence tending to show that the defendant arrived in Logan with the wheat in question on the evening of November 4, 1909. Robert Crookston, an employee at a feed stable adjoining the feed yard where defendant kept his outfit while in Logan, testified that he passed by the feed yard at seven o'clock on the morning of November 5, 1909, and that he observed defendant's team in one of the stalls; that the horses had eaten most of the hay given them, and "had worked" some of it "behind them." "Q. Did you observe their condition with reference to whether or not they had been recently driven-as to sweat? A. Well, the sweat was dry. I think they had been there all night." Two of J. E. Godfrey's sons, witnesses for the state, testified that on

November 4, 1909, at about seven o'clock in the morning, they left Clarkston with a team and buggy and drove to Logan, and in the afternoon of the same day returned to Carkston; that they left Logan about four o'clock p. m., passed through Benson Ward "about dusk," and arrived at Newton about 7:30 o'clock; that they did not see the defendant anywhere on the road between Logan and Newton. This evidence and that given by Robert Crookston was evidently introduced for the purpose of impeaching the testimony given by defendant to the effect that he arrived in Logan on the morning of November 5th. Counsel for the state seem to attach considerable importance to the testimony given by the state's witnesses on this point. If, as counsel for the state seem to contend, this testimony shows that defendant arrived in Logan on the evening of November 4, 1909, it establishes a complete alibi for the defendant and proves conclusively that he did not commit the crime of which he stands convicted, because the record shows that the crime was evidently committed on the night of November 4th, and of course if the defendant was in Logan (which is eighteen or twenty miles from the place where the larceny was committed) that night he did not commit it.

The evidence, without conflict, also shows that the defendant, as we have hereinbefore stated, threshed one hundred and sixty-five bushels of his own wheat on his premises in the town of Newton. He fed a small portion of this wheat to his horses, sold thirty-four bushels at Cache Junction to a man by the name of Griffith, and at the time he was arrested had about sixty bushels of the wheat in his granary, which, together with the sixty-two bushels that he sold to the milling company in Logan, accounted for the wheat threshed.

In view of the complete failure of the evidence to in any manner connect the defendant with the commission of the crime charged, any inference that might legally be drawn from the comparison of certain samples of wheat which were introduced in evidence by the state as tending to show that the wheat sold by defendant on the occasion in question was of the same kind and class as the wheat stolen and different

2

from the wheat raised by defendant would be wholly inadequate to support a judgment of conviction. Furthermore, it was not shown that either of the samples mentioned was taken from the wheat stored in the granary and shed on the Godfrey farm at the time the larceny was committed. The sheriff testified that he received "from the Godfrey boys" the sample of wheat introduced in evidence as wheat taken from that stored in the granary and shed on the Godfrey farm at the time the larceny was committed, but there is no evidence in the record tending to show where the "Godfrey boys" obtained the wheat. Therefore that particular sample of wheat was incompetent as evidence for any purpose and should have been excluded until it was shown, if such was the fact, that it was taken from the wheat stored on the Godfrey premises at the time of the larceny.

It was shown at the trial that the defendant had before, on several occasions, been in serious difficulty and may have been regarded by some people as an "undesirable citizen." This, together with the fact that much evidence was introduced by the state to prove matters which in their nature were collateral to the main issue, no doubt, to some extent, tended to divert the attention of the jury from the real question before them, namely, the question of whether or not the defendant was proved guilty, beyond a reasonable doubt, of the particular crime charged in the information. Upon no other theory can we account for the verdict of the jury in this case.

Judgment reversed, and cause remanded for a new trial.

FRICK, C. J., and STRAUP, J., concur.

OSWALD v. UTAH LIGHT AND RAILWAY
COMPANY.

No. 2194. Decided June 6, 1911 (117 Pac. 46).

1. STREET RAILROADS REGULATIONS-CONSTRUCTION OF MUNICIPAL ORDINANCE An automobilist injured by violation of an ordinance making it unlawful to run any street car without having in charge a motorman and conductor, provided that cars may be run with only one man stationed at the front end of such car when it is in motion, could rely thereon as an act of negli gence. (Page 248.)

In

2. STREET RAILROADS-INJURIES-JURY QUESTION-NEGLIGENCE. an action against a street car company for injury to an automobile by a collision, whether defendant was negligent held a jury question. (Page 248.)

3. NEGLIGENCE-"CONTRIBUTORY NEGLIGENCE." A plaintiff who fails to do what the law requires, or what one of prudence would ordinarily do under the same or similar circumstances, is negligent, barring recovery. (Page 249.)

4. STREET RAILROADS

INJURIES-JURY QUESTION CONTRIBUTORY NEGLIGENCE. The requirement that a traveler look and listen for approaching cars before attempting to cross the track does not apply to a street railroad to the same extent as in crossing a steam railroad; the question of contributory negligence in the former case being generally left to the jury, while in the latter it is usually held a matter of law. (Page 250.)

CONTRIBUTORY NEGLIGENCE

5. NEGLIGENCE QUESTION FOR COURT. When the conduct is such that reasonable minds may not differ as to what a prudent person would ordinarily have done under the circumstances, the question of contributory negligence is for the court. (Page 250.)

6. STREET RAILROADS INJURIES-CONTRIBUTORY NEGLIGENCE. While plaintiff looked toward the track upon approaching a street car track in her automobile, she testified that she only saw a black object on the track, which was in fact an electric engine some fifty or sixty feet away, though there were also several flat cars in front of the engine, and she was unable to tell what the object was and whether it was standing or moving, and that she did not see the flat cars until they were about two feet from the automobile. Held, that plaintiff was negligent, preventing recovery for injuries to the automobile by collision. (Page 251.)