2

in question without some kind of a highway would be useless. A highway without bridges over the streams would be impracticable. Both are but parts of one general object. To say the purpose here was a union of two separate and distinct objects, one might as well say that a stated purpose to purchase a site for a specified sum for school purposes, and to erect a school building thereon for another specified sum, contained, or related to, two separate and distinct objects or purposes and proposed two separate appropriations for them, which would appear to be groundless.

The writ is denied.

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

BATES v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY.

No. 2124. Decided March 10, 1911 (114 Pac. 527).

1. RAILROADS CROSSING ACCIDENT-DUTY OF TRAVELER. It is not sufficient for a traveler in attempting to cross a railroad track to look in one direction. It is his duty to look in both directions, and he must select a position from which an effective observation can be made, and he must look out for all trains, and cannot assume that trains will pass only at specified times. (Page 573.)

2. RAILROADS-CROSSING ACCIDENT-QUESTION OF LAW. While ordi narily the question whether under all the circumstances a traveler has exercised due care in attempting to cross a railroad track is for the jury, where the facts are not in dispute and reasonable men cannot differ upon the proposition that, if the traveler had looked or listened, he must have discovered the approaching train in time to have avoided a collision, the question of his negligence is one of law. (Page 573.)

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Ormus Bates against the San Pedro, Salt Lake & Los Angeles Railroad Company.

Judgment for plaintiff. Defendant appeals.

REVERSED, and a new trial ordered.

Pennel Cherrington for appellant.

W. H. King and W. S. Marks for respondent.

FRICK, C. J.

Respondent recovered judgment for damages against appellant in an action for negligence. The alleged damages were caused in a collision of respondent's team while hitched. to a wagon with one of appellant's fast passenger trains at a public country crossing in Tooele County, Utah. The only question presented for review on this appeal is an alleged error committed by the trial court in refusing to charge the jury as requested by appellant that respondent in attempting to cross the track at the time in question was guilty of negligence which caused or directly contributed to the injuries and damages complained of, and for that reason the jury should find in favor of the appellant.

Respondent's negligence, appellant's counsel contends, is established by uncontroverted evidence, and hence should be declared as a matter of law. The evidence upon the question of negligence most favorable to respondent is substantially as follows: On the 28th day of January, 1908, a short time before noon, respondent was driving his team, hitched to a farm wagon, on a public highway in Tooele County. The highway in question, before crossing the railroad track, runs parallel with the track for about a quarter of a mile, and then turns at a right angle across the track. Easterly from the point where the highway turns and continues parallel with the track both the highway and the track run in a southwestly and northeasterly direction, and the track is laid in a cut about ten feet in depth, which extends about one hundred rods southwesterly from the crossing, and also

The point at

for perhaps more than that distance northeasterly therefrom. The depth of this cut is considerably increased at places by the waste matter taken from the cut and thrown out on the embankment. In traveling on the highway in its course parallel with the track there are places where, if one looked, a train coming from the west could be seen. On the morning in question respondent says it was "smoky and foggy," and at the point where he turned to follow the highway parallel with the track he could see the country to the southwest along the track for "about half a mile." He further says, "I wasn't specially looking for a train," but that he neither saw nor heard one. While traveling northeasterly parallel with the track, he says he did not look for a train. When he arrived at the point where he was about to turn to cross the track, he says: "I drew up my horses as I made that turn. I was on a sort of a jog trot coming along the parallel highway, and, as I made the turn, naturally drew up my horses and slowed down and listened. There was no sound I could hear-no sound of a train." which he "slowed up," he says, was about fifty feet from the track, and that while driving toward the crossing he glanced to the west, and then looked "northeasterly down the track." He further says that he continued to look in a northeasterly direction for a train until "my team was just about to the track." Then he looked southwest again, and then saw the train which struck his team and wagon. At this moment, he says: "My team was on the track." Seeing the train so close upon him startled him, and he does not remember of doing anything more. His team and wagon were struck and damaged, and he received some personal injuries. On cross-examination he, in substance, said that he was quite familiar with the crossing in question; that he crossed it about once a week; that he knew that the train which struck his team was a fast passenger train, but did not know the time it would pass that point. In driving easterly parallel with the track, he did not look back for a train. Did not stop his team at any point to listen for the approach of a train, but slowed down to a walk. Did not

stop to listen for a train from the west, because "I din't think it necessary." Knew a train could not be seen more than one hundred and fifty feet west of the crossing from a given point, and knew that a train might come along at any time. Could not see a train coming from the east, either, until it had reached a point one hundred and fifty feet east from the crossing. Did not stop to look for a train from the west, because "I was curious to see a train from the other way." Had no curiosity about a train which might come from the west. Expected a train from the east about that time, but did not expect one from the west. "Q. And, after you left the corner of the fence fifty feet from the track, you did not look again until your team was right on the track; then you turned around and the engine was on you; that's correct, is it? A. Yes." He knew that the train from the west came downgrade before reaching the crossing. "Q.

. Did you testify on direct examination that the first time you loked to the west was just at the turn of the highway around the right of way fence and about fifty feet from the track? A. Yes, sir. Q. Did you say that from that time on for a distance of ten or twelve feet you kept your eyes to the west? A. Yes." Respondent also made a statement with respect to the accident two days after it occurred, which he signed, and in which, among other things, he said: "Between the road and track inside the fence is a high bank. On this particular morning it was foggy and smoky, and I did not look back while driving along to see if train was coming for that reason. I was looking down the track toward Erda, for I knew a freight train was due about that time. I wasn't thinking or know of the approach of the limited train. I did not hear any signal from engine nor the rumbling of the train. I was trotting along, and didn't stop as I approached the crossing to look or listen if train was coming. My horses saw the train and shied, and this caused me to look around, and then it was I saw the train, but it was too late. Had I stopped my wagon at corner of fence where road turns to cross the track, I could have seen the train coming, but it was downhill and hard to stop un

less you had a brake." He explained some of the expressions used in the forgoing quotation on his redirect examination, and on such examination he was asked the following questions with respect to looking or listening for a train from the west which he answered as indicated: "Q. Did you observe-how long did you look, in seconds? A. Which, direction? Q. To the west at the point where you turned and slowed down to a walk. A. Oh, perhaps three seconds or four. Q. And state the extent to which you listened. . . . Describe to what extent you did listen. A. I directed my attention that way (west) looking that way and immediately turned and looked the other way (east). I (was) satisfied in my mind, not having seen any train. Q. Did you reach any conclusion it was safe for you to proceed in the direction of the track? A. Yes, sir." There was also evidence that for some distance west of the crossing the track is downgrade amounting to nearly one per cent, as it proceeds easterly; that the trains in approaching the crossing from the west require no steam to propel them, and in consequence make but little, if any, noise, and emit little, if any, smoke or steam from the smokestack; that the train in question was running at the rate of about forty miles an hour; that neither the respondent nor two or three others who were in the vicinity and could have heard the signals heard any signal or sound of warning given as the train approached the crossing, nor at any point westerly thereof. A witness called on behalf of respondent also testified that at a point forty feet south of the crossing a train could be seen for about five hundred feet as it approached the crossing from the west. The highway is considerably higher than the track, so that in approaching the crossing the ground slopes towards the track. Respondent also admitted that at the time of the collision he may have worn a cap turned down over his ears.

The foregoing, in substance, constitutes the evidence most favorable to respondent upon the question of his own negligence. At first blush, we were impressed with the idea that, in view of all the circumstances, the question of respondent's negligence was for the jury. Upon a careful consideration.