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leaving a mark in the frosty coating thereon. , as we do, that there was sufficient evidence Indeed, the testimony is to the effect that to carry the case to the jury upon both the there were no indications whatever on the question of defendant's negligence and upon car that any one, or any substance, had come the assumption of risk on the part of the dein contact with it on the morning in ques- ceased, yet that, standing alone, is not suftion, before the examination was made, ei- ficient to sustain the verdict. In order to rether on the west end or on the north side of cover, the plaintiff was required to establish the car. The witnesses also testified that by a preponderance of the evidence (a) that the state of the weather was such that the the defendant was negligent in one or more frost remained intact on the car until after of the acts charged in the complaint, and the examination. It was also shown that (b) that said negligence was the proximate the skin was not broken or lacerated at the cause of the death of the deceased. The sepoint where the skull of the deceased was rious question in this case is, is there any crushed in; that there were no other bruises substantial evidence in the record from on the body except a few "slight scratches," | which it may be legitimately inferred that as the witnesses called them, on the face of the death of the deceased was caused by his the deceased, which, it was assumed, were body coming in contact with the car standing caused by the sliding of the deceased from on the side track? After a careful reading the point “X,” where the deceased first of the whole evidence contained in the bill of struck the ground, to the point "B,” where exceptions, we confess our inability to disthe body was found, and that in sliding some cover any such evidence. The rule is well of the buttons on his vest had been torn off. established that where an accident occurs The deceased was lying face downward when through the alleged negligence of one person found.
which results in injury or damage to anThe doctor called by the plaintiff testified other, and the injured person seeks to rethat the skull was probably crushed in by a cover damages, and it is made to appear blow from some blunt instrument or sub- that the accident may have been occasioned stance. It was also made to appear that the by one of two or several causes, and that side track was constructed about 27 years the person complained of is responsible only prior to the accident, and that it was main- for one of them, then the burden is on the tained for that length of time at the place it plaintiff to show that the accident and rewas at the time of the accident; that rec- sulting damages were produced by the cause ords were kept by the defendant of all acci- for which the person complained of is redents since the year 1901, and that there sponsible, and in case of a failure to estabwas no record of any accident occurring şim- lish such fact the plaintiff must fail in the ilar to the one in question, or any other, at action. In 29 Cyc. 625, it is said: the side track in question during that period "The evidence must, however, do more than of time.
merely raise a conjecture or show a probability The plaintiff also produced a number of as to the cause of the injury, and no recovery
can be had if the evidence leaves it to conjecmen who had been employed in the operation ture which of two probable causes resulted in of trains in different parts of the country, the injury, where defendant was liable for only who testified that it was customary and
one of them.” usual for trainmen to go down the side of  If the probabilities are equally balanccars when in motion to keep a “lookout” for ed that the accident was produced by a cause hot boxes. There is other evidence, but, in for which the defendant is responsible or our judgment, the foregoing fully and fairly by one for which he is not, the plaintiff must reflects the record.
fail. Searles v. Manhattan Ry. Co., 101 N. Upon the foregoing facts the defendant re- \Y. 661, 5 N. D. 66; James v. Robertson, 39 quested the district court to instruct the ju- Utah, 414, 113 Pac. 1068. If, in view of the ry to return a verdict in its favor upon sub- whole evidence, it is just as probable that stantially the following grounds: (1) Be- the deceased fell from the moving train, and cause no negligence was shown on the part of that the back of his head struck the hard, the defendant; (2) that the cause of the frozen ground, and in that way his skull was death of the deceased is left to mere conjec- crushed, as testified to by the witnesses, as ture; and (3) that the deceased assumed the it is that he came in contact with the freight risk as a matter of law. The court refused car standing on the side track, and that his
skull was crushed by the impact, as contendto so instruct the jury, but submitted the ed by plaintiff, then the cause of his death case to them upon the evidence. The jury is a mere matter of conjecture. We fail to returned a verdict in favor of the plaintiff, find any evidence in this record from which upon which the court directed judgment to it may be deduced or inferred that the debe entered, from which the defendant ap- ceased came in contact with the freight car peals.
standing on the side track and that he was A number of errors are assigned:
knocked from the moving train by it. The [1, 2] In view of the facts and circumstanc- inference is quite as strong, if not stronger, es, the evidence respecting defendant's negli- that the deceased in some way slipped gence is quite meager. Assuming, however, and fell from the moving train, or that his
handhold loosened and that he fell to the, the effect of the natural forces are kept in ground. Indeed, by keeping in mind the mind, it is quite probable that if the deceas. whole evidence, the inference that he was ed had come in contact with the standing caused to fall by reason of the cause last car while he was on the moving train, that mentioned is more rational and more prob- by the force of the impact his body would able than that he was knocked from the mov- have been thrown away from the standing ing train by the standing freight car. If car and would not have fallen to the ground there had been no frost on the standing car, between the two tracks so near the standing which of necessity must have been disturbed car, as indicated by the evidence. From all in case any person, object, or thing came in the facts and circumstances the inference is contact therewith, there would be at least certainly as rational, and quite as probable, some basis for the inference contended for that the deceased fell backward from the by plaintiff. Where, however, as in this moving car, and in doing so struck the hard case, the inference is based upon an assum- ground with the back of his head, and that ed or supposed fact, which fact the evidence the momentum of his body, which was imshows did not exist, then the inference is parted to it by the fast moving train, caused left without support. The rule in that re- it to turn over and slide, precisely as indigard is stated by the Supreme Court of Or- cated by the evidence, as it is that his body egon in the case of Goss v. Northern Pac. came in contact with the car standing on Ry. Co., 48 Or. 439, 87 Pac. 149, in the head- the side track. The cause of his death is note, thus:
therefore left to conjecture merely, and in "Where the evidence of negligence is entirely view of that fact the judgment cannot preinferential, and the testimony for the defendant vail. is clear and undisputed to the effect that there was no negligence, the plaintiff's case is over
The following cases are all well considercome as a matter of law, and it becomes the ed, and in all of them it is held that where, duty of the judge to take the case from the as here, the proximate cause of the injury jury."
is left to conjecture, the plaintiff must fail The rule is applied in Christensen v. Rail- as a matter of law: Sorenson v. Menasha P. road, 35 Utah, 137, 99 Pac. 676, 20 L. R. A. & P. Co., 56 Wis. 388, 14 N. W. 446; Kearns (N. S.) 255, 18 Ann. Cas. 1159, and in Rich- v. So. Pac. Ry. Co., 139 N. C. 470, 52 S. E. ards v. Railroad Co., 41 Utah, 99, 123 Pac. 131; Monson v. La France Copper Co., 39 933. It must not be assumed, however, that Mont. 50, 101 Pac. 243, 133 Am. St. Rep. 549; the rule thus stated can be given general ap- Stratton v. C. H. Nichols Lumber Co., 39 plication. Indeed, the rule can rarely be Wash. 323, 81 Pac. 831, 109 Am. St. Rep. applied, since the evidence generally is such 881; Hansen v. Seattle Lumber Co., 31 Wash. that it is the exclusive province of the jury 604, 72 Pac. 457; Whitehouse v. Bryant, etc., to draw the inferences therefrom. The case Co., 50 Wash. 563, 97 Pac. 751; Glancy v. at bar, however, presents a typical case McKees, 243 Pa. 216, 89 Atl. 972; Puckhabwhere the rule is applicable. Here the plain- er v. So. Pac. Ry. Co., 132 Cal. 363, 64 Pac. tiff relies entirely upon an assumed fact, 480; Edd v. Union Pac. Coal Co., 25 Utah, namely, that the deceased came in contact 297, 71 Pac. 215. In the last case cited the with the freight car which was standing on following language is adopted and approved: the side track. The witnesses produced both “When an injury may have come from either by the plaintiff and the defendant, however, one of two causes, either of which may have all agree that the car standing on the side been the sole proximate cause, it devolves on track was covered all over with a thick coat- evidence that the cause for which the defendant
the plaintiff to prove by a preponderance of the ing of frost; that any person, object, or sub- was liable was culpable and the proximate stance touching the car at any point or place cause.” interfered with the coating of frost and dis  Numerous other cases could be cited turbed it so that it was easily seen by any to the same effect, but it is not necessary to one that some one or something had come do that. It is contended, however, that the in contact with the car; that after careful case of Lewis v. Rio Grande Western Ry. Co., examination, lasting a considerable length 40 Utah, 483, 123 Pac. 97, is decisive of this of time, no mark of any kind was discovered case. We are unable to concur in that view. indicating that any one or anything had in that case it was clearly established that come in contact with the car at any point, the railroad company was negligent in opand that experiments were made to deter- erating its train at a rate of speed prohibitmine whether, if any one or anything of ed by ordinance, and that it had failed to substance had touched the frosting on the give any warning signals in approaching a car, evidence of the fact would appear in the public crossing. The deceased was found frosting. The assumed fact that the body dead at such crossing, toward which he was of the deceased came in contact with the approaching when last seen, just before midcar was thus clearly, if not conclusively, neg- night. The train passed over the crossing atived. Moreover, it is clear that the skull where the deceased was found just about of the deceased could have been crushed by midnight, and his watch, which was found a fall from the moving train upon the frozen near him, had stopped at midnight. The con. ground, precisely as it was shown by the trolling question in that case was whether
dict against the contention that the death the car, if disturbed, would not be replaced, of Lewis was caused by his own carelessness i just as it was assumed by the witnesses in attempting to cross the track at the cross- who examined the car. That, therefore, ing aforesaid. It was held that, in view of merely adds another element to the unall the evidence, the presumption that Lewis certainty of the true cause of Tremelling's was in the exercise of due care in attempting death. to cross the track at the public crossing was  We desire to add, before leaving this sufficient to justify the verdict of the jury. subject, that although it were assumed that Although in the case at bar the question of the deceased came in contact with the standcontributory negligence on the part of the ing car, yet that would not necessarily esdeceased was not a defense to the action, tablish the proximate cause of his death. but was material only in determining the Suppose he had come in contact with the amount of damages, yet the presumption that car after he had lost his hold on the freight he was in the exercise of due care for his car on which he was riding, the proximate own safety is precisely the same as in the cause then would be the loosening of his Lewis Case. The legal effect of the pre- handhold and falling from the moving car. sumption in this case is, however, in favor Coming in contact with the standing car of and not against the defendant. It will would thus not constitute the proximate not be presumed that the deceased, in broad cause any more than the falling on the hard daylight, unnecessarily exposed himself to ground or on the ties, or any other object, the danger of being struck by the car stand- would constitute the proximate cause of his ing on the side track, when he could easily death. We may therefore regard the evihave avoided the danger. Such would be the dence from any point of view, and the result presumption to ward off contributory negli- is always the same, namely, that the cause gence, and such is the presumption in this of death is left wholly to conjecture. case. In the face of that presumption, there  The Lewis Case, as well as many othfore, the case is made still stronger for the er cases decided by this court, conclusively defendant.
shows that, if there is any substantial eviAgain, plaintiff proved by competent evidence in support of the verdict, this court dence that the deceased was pursuing the will not invade the province of the jury and usual method in keeping a “lookout” for the pass on questions of fact. Where, however, expected hot box. This evidence was intend- as here, the verdict rests on mere conjecture, ed, no doubt, to show that the deceased was we cannot, and ought not, seek to escape the not guilty of contributory negligence. If, responsibility of setting it aside. Where therefore, he was negligent, it was not be there is no substantial evidence in support cause he got down on the side of the car, of the findings or verdict, then, as a matter but because of some other act of carelessness, of law, the findings or verdict must fail. such as leaning out too far from the moving One or two of the other assignments may car. The presumption, however, is that be be attributed to the fact that the district was not negligent in that respect any more court refused to instruct the jury to return than in any other; and hence it cannot be a verdict for the defendant as requested, and presumed, without some evidence, either di- for that reason need no special considerarect or inferential, that he exposed himself tion. to unnecessary dangers.
The assignments relating to the admission  It is earnestly insisted, however, that" and exclusion of evidence are not tenable. we must take judicial notice of the laws and
For the reasons hereinbefore stated, the forces of nature, and hence that it is a phys- judgment is reversed, and the cause is reical fact that frost on windows and other manded to the district court of Salt Lake substances is replaced in case it is dis- county, with directions to grant a new trial. turbed. The familiar experience with win- Appellant to recover costs on appeal. dows in dwelling houses and in railroad cars is referred to. The phenomenon alluded to McCARTY, CORFMAN, THURMAN, and is, however, produced by the difference in GIDEON, JJ., concur. temperature of the atmosphere between the inside and the outside of the dwelling house
(31 Idaho, 272) or car. If the atmosphere is at the same
STATE v. GRADY. temperature on both the inside and outside of the dwelling house or car, the frosting will (Supreme Court of Idaho. Jan. 9, 1918.) not be replaced after it is disturbed. The 1. CRIMINAL LAW 1004 - RIGHT TO APreplacement is due to the difference in the PEAL. temperature, as before stated, and to the
The right to appeal in this state is conferred
by legislative authority, and if it exists it must moisture contained in the atmosphere. The be found in the Constitution or statutes. undisputed testimony of plaintiff's own wit. 2. CRIMINAL LAW 1024(1)-JUDGMENT FOR nesses is to the effect that it was no longer
DEFENDANT-APPEAL BY STATE. freezing at about the time the accident in favor of defendant, whether upon a verdict of
The state has no appeal from a judgment happened. In view of that, the frosting on acquittal or upon the determination by the court
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
of a question of law, unless it be expressly con- | the judgment of once in jeopardy, herein entered ferred by statute in the plainest and most un- in the said district court on the 18th day of equivocal terms.
June, A. D. 1915, in favor of the defendant in Appeal from District Court, Lemhi Coun- order of said court, rendered on the said 18th
said action, and the whole thereof, and from the ty; James R. Bothwell, Judge.
day of June, A. D. 1915, discharging the said Joseph D. Grady was charged by informa- defendant and exonerating his bail, and from tion with grand larceny. From an order
the further order of said court, made on June
24, A. D. 1915, denying and overruling the sustaining his plea of former jeopardy, the plaintiff's motion to vacate and set aside the State appeals. Appeal dismissed.
order discharging the defendant and exonerating T. A. Walters, Atty. Gen., Joseph H. Peter-court, made on the said 24th day of June, A. D.
his bail, and from the further order of said son, former Atty. Gen., and John E. Rees, 1915, denying and overruling the plaintiff's E. W. Whitcomb, and W. H. O'Brien, all of written motion to correct its record, so Salmon, for the State.' Jesse B. Roote, of to have been in former jeopardy, and not enti
to show that the defendant had not been adjudged Butte, Mont., James M. Stevens, of Pocatel- tled to his acquittal, and that he be remanded lo, and C. R. Clute, of Salmon, for respond to the care and custody of the sheriff of the ent.
said county of Lemhi, to abide the further order
of this court." MORGAN, J. Respondent was charged,
In support of its attempted appeal the by information, with grand larceny, to state has assigned as error: (1) The action which he entered a plea of not guilty. The of the trial court in overruling its demurrer cause was submitted to a jury, which, after to the plea of former jeopardy; (2) in overdeliberating for some time, advised the ruling its oral motion to vacate and set aside court of its inability to reach an agree the order discharging respondent and exonment, and it was thereupon discharged. erating his bail; (3) in overruling its writWhen the cause was again brought on for ten motion to correct the records to show trial, respondent entered a plea of once in that respondent had not been adjudged to jeopardy, wherein he alleged that he was have been in former jeopardy and that he not present in court when the jury was dis- be remanded to the custody of the sheriff. charged, and had not waived his statutory
 "The right to appeal in this state, is right to be present. The state demurred to conferred by legislative authority, and if it the plea, and moved that it be disallowed exists it must be found in the Constitution and dismissed. The demurrer and motion or statutes." Evans State Bank v. Skeen et were overruled, whereupon the state filed an al., 30 Idaho, 703, 167 Pac. 1165. answer, in which it alleged that at the time
 “As a general rule the state has no the jury was discharged respondent was on right to a writ of error or to an appeal from bail and at liberty, and that if he was ab- a judgment in favor of defendant, whether sent from the courtroom he was voluntarily upon a verdict of acquittal or upon the deso, and had thereby waived his statutory termination by the court of a question of right to be present. A jury was impaneled, law, unless it be expressly conferred by to which the trial judge, after the introduc- statute in the plainest and most unequivocal tion of testimony, submitted the following terms." 12 Cyc. 804; State v. Ridenbaugh, interrogatory:
5 Idaho, 710, 51 Pac. 750; State v. Craig, 223 "Was the defendant, Joseph D. Grady, pres- Mo. 201, 122 S. W. 1006; Mick v. State, 72 ent in the courtroom, on the 4th day of April, Ohio St. 388, 74 N. E. 284; State v. Ford, 1914, at the time when the jury returned into 161 Iowa, 323, 142 N. W. 984; Oklahoma court, announced that they were unable to City v. Tucker, 11 Okl. Cr. 266, 145 Pac. 757, reach a verdict, and were by the court dismissed?"
Ann. Cas. 1917D, 984; People v. Knowles The jury answered the interrogatory in (Cal.) 155 Pac. 140.
Section 13, art. 5, of the Constitution, dithe negative, whereupon the court entered an order that the plea of once in jeopardy system of appeals. Pursuant thereto it has
rects the Legislature to provide a proper was sustained, and respondent was discharg- enacted section 8043, Rev. Codes, which is ed and his bail exonerated. Thereafter ap
as follows: pellant filed a motion that the court correct its record, so as to show that respondent had
“An appeal may be taken by the state:
"1. From a judgment for the defendant on a not been adjudged to have been in former demurrer to the indictment or information; jeopardy, and was not entitled to his acquit *2. From an order granting a new trial; tal, and that he be remanded to the custody
"3. From an order arresting judgment;
“4. From an order made after judgment, afof the sheriff, to abide the further order of fecting the substantial rights of the prosecution; the court. Counsel for appellant also oral “5. From any ruling of the trial judge during ly moved that the court vacate and set aside the course of the trial on the receipt or rejection the order discharging respondent and exon- judge on the giving or refusal to give instruc
of testimony, and from any ruling of the trial erating his bail. These motions were over- tions to the jury." ruled, and appellant served and filed a no
By reading the notice of appeal in this tice of appeal, as follows: "You will please take notice that the state, section above quoted, it will at once appear
case, in the light of the provisions of the in the above-entitled action, hereby appeals to
peal, by the state, from any of the orders of Company passed a resolution that a meeting the trial court here sought to be reviewed. of the stockholders be called, and a transfer No stretch of the imagination can make any of the system of the canal company to the part of the section, except, possibly, the Snake River Valley irrigation district be recfourth subdivision thereof, applicable to the ommended; each stockholder to receive his matter here under consideration, Even proportion of the bonds of the district to be though we may construe the order sustain- given in payment for the system. On Noing the plea of once in jeopardy, and dis-vember 16, 1907, the stockholders' meeting charging respondent and exonerating his was held and the recommendation of the bail, to be such a judgment as is contem- board of directors was adopted. On Decemplated by that statutory provision, which is ber 14, 1907, the directors again met and dedoubtful, the action of the court, subsequent cided to convey the system of the canal comthereto, overruling appellant's motion to va- pany to the district for the sum of $178,750, cate that order and to correct the record, payment to be in bonds of the district in is not appealable. People v. Walker (Cal.) such denominations that each stockholder of 61 Pac. 800. To hold that the state may ap- the canal company might receive his proporpeal from orders denying such motions is to tionate share. In July, 1908, the transfer permit it to create for itself, by making the was completed, the bonds of the district were motions, the right to appeal, in effect, from received, and in January, 1909, were allotted a judgment or order that a defendant has to the stockholders of the canal company, been once in jeopardy, which right the Leg- and most of them were delivered. The bonds islature has studiously avoided conferring allotted to respondents were not delivered, upon it.
but were held for the reason, as it appears, Applying the rule heretofore quoted from that their stock was held as security by othCyc., to the effect that the state's right to er parties. These bonds were intrusted by appeal, in criminal cases, must be expressly the directors to one Mickleson, secretary of conferred by statute in the plainest and most the canal company, who embezzled them and unequivocal terms, it is manifest that the converted them to his own use. It appears action of the trial court, sought to be re- that Mickleson's default was not known to viewed, is final, that this court has no juris- the directors until December, 1910. Rediction of the controversy, and that the ap- spondents instituted this action against the peal must be dismissed. It is so ordered. canal company and its directors to recover
the value of the bonds allotted, but not deBUDGE, C. J., concurs in the conclusion livered, to them, and based their claim upon reached. RICE, J., concurs.
the alleged negligence of the directors in
permitting the bonds to be stolen. The jury (31 Idaho, 252)
returned a verdict in favor of the several CHADWICK et al. v. HOLM et al. plaintiffs, amounting to $11,242.50, judgment (Supreme Court of Idaho. Jan. 8, 1918.)
was entered accordingly, and from the judge
ment this appeal is taken by the defendants CORPORATIONS O320(4)—Loss OF BondsLIABILITY OF CORPORATION AND DIRECTORS.
who were directors of the corporation. Where, with the consent of the stockholders, Appellants deny the right of respondents, a corporation, through its directors, transfers as stockholders, to bring this action in their all of its property to another corporation, taking as payment bonds of the latter, and where name, and have cited many authorities to such bonds are, by the directors, allotted among sustain this contention; but in each of the the stockholders in proportion to their shares cases cited a stockholder sued the directors of stock, and some of them are delivered, but to recover for losses to the corporation occaothers are lost, through the negligence of the directors, before delivery, a suit may be main- sioned by their negligence, and it was held tained by the stockholders to whom the lost that the loss was that of the corporation, and bonds were allotted, against the corporation and not of the stockholder, even though his shares the directors, as joint tort-feasors, for the neg- of stock decreased in value as a result, and ligence resulting in the loss.
hence the corporation should bring the suit. Appeal from District Court, Bingham In this action, stockholders are not seeking County; F. J. Cowen, Judge.
to recover a proportionate amount of what is Action by James Chadwick and others due the corporation as a result of appellants' against N. M. Holm and others. Judgment negligence; but they claim the bonds were for plaintiffs, and defendants appeal. Af- theirs, because of the allotment of the same firmed.
to them by the corporation. There can be Hansbrough & Gagon, of Blackfoot, and no doubt that the stockholders' consent to Clency St. Clair, of Idaho Falls, for appel- the recommendation of, and action by, the lants. C. S. Beebe and William A, Lee, both directors to transfer the property of the of Blackfoot, and Holden & Holden, of Idaho canal company, was based upon the considFalls, for respondents.
eration that the bonds be properly distribut
ed to them. Upon that theory respondents MORGAN, J. On November 4, 1907, the were the proper parties to bring the action. directors of the Snake River Valley Canal It is contended by appellants that the
em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes