rely on any warning from the company, it was his duty to look out for and protect himself, and the defendant cannot be held guilty of negligence unless it is shown that plaintiff was seen or known to be in a place of danger in time for defendant to have stopped its train and have avoided the injury.

5. Where the facts are undisputed, and but one reasonable inference can be drawn from them, the question of contributory negligence becomes a question of law for the court. Bunnell v. Railway Co., 44 Pac. 927, 13 Utah, 314, Fowler v. Coal Co., 52 Pac. 594, 16 Utah, 348, and Butte v. Same, 47 Pac. 77, 14 Utah, 282, approved.

(Syllabus by the Court.)

Appeal from district court, Seventh district; Jacob Johnson, Judge.

Action by James P. Johnson against the Rio Grande Western Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

In this case the plaintiff alleges in his com. plaint that the defendant negligently backed a train of cars up its track in the cañon, to Winter Quarters, where plaintiff was employed, without keeping a sufficient or proper lookout, and failed to ring the bell or blow the whistle, or give any warning of the approach of the train, and failed to have a man at the rear end, and failed to stop the train after it was seen that the plaintiff was in danger, by reason of which plaintiff was injured. The answer denies every allegation of negllgence charged against the defendant, and alleges that the injuries to plaintiff, if any, were caused by plaintiff's own negligence, in failing to use reasonable care to avoid the train. The testimony in the case tends to show that Winter Quarters is about a mile or a mile and a half from Scofield; that the cañon from Winter Quarters to Scofield is narrow; that there are many dwelling houses along the side of the track on both sides from Winter Quarters to Scofield; that there is a public road along the side of the track; that the track was up a steep grade, and at Winter Quarters was about 6 per cent. grade; that at Winter Quarters there were four tracks, one south and two north of the main track, over which was constructed a trestlework from one side to the other of the cañon; that this trestle was about 20 feet high, and from 20 to 30 feet wide, and was supported by 12 by 12 timbers, 4 or 5 feet apart, and placed within about 22 or 3 feet from the main track, and were braced by cross timbers; that hand cars loaded with coal from the mines on both sides of the cañon were run over and upon the trestle, and were dumped through chutes into cars placed on the track underneath the trestle; that the side tracks on the north connect with the main track at Parmalee's house, about 150 yards below the trestle, and the one on the south at Three Throw, about 400 or 500 yards below the trestle; that usually the train reached Scofield at about 1:30 o'clock p. m., and sometimes at 4 o'clock, making two trips a day to Winter Quarters; that the trains

were usually run backwards up the cañon; that generally, but not always, they had been in the habit of ringing the bell and whistling at Parmalee's house and at Three Throw; that sometimes they would blow the whistle and ring the bell there, and sometimes they would not; that an elevator used for crushing coal was from 40 to 60 feet northeast from the trestle, and made considerable noise at the time in question; that on the 26th day of October, and several days prior thereto, appellant was working for the Pleasant Valley Coal Company at the trestle, shoveling waste and dirt from between the main line and timbers into a car standing on the south side track, which car was placed there by respondent for that purpose; that the crew of the train approaching him could see him about 200 yards off, had he been on the track; that plaintiff did not hear the train at the time in question, and his hearing was good; that a day or two before the accident, when plaintiff was put to work there, Mr. Johnson, the foreman of the Pleasant Valley Coal Company, told appellant to look out for the trains; that the accident happened between 4 and 5 o'clock in the afternoon; that the appellant was left-handed, and could not shovel righthanded, and therefore had to stand with his back down the cañon, facing opposite the direction the train came; that he was at work under the trestle, about even with the first timbers, or a little past the south side of the main line, and near the edge from the direction the train came; that while at work appellant had watched for the train, and looked back every minute or so; that on the 26th day of November, between 4 and 5 o'clock, respondent backed a train of from 8 to 12 cars up the cañon at a pretty good rate, without blowing the whistle or ringing the bell, and struck and injured the plaintiff; that the elevator was from 40 to 60 feet from the trestle, and 40 feet north from the main track; that the elevator was used to carry coal from the chute where it was dumped; that Three Throw is about 500 feet east of the trestle; that there is a curve in the track halfway between Three Throw and the trestle; that, when struck, plaintiff was on the south side of the main track, close to the trestle, shoveling slack between the main track and the south side of the track into coal cars standing on the south track; that this slack fell from the cars above; that the main track and south track were 7 feet apart; that the slack plaintiff was shoveling was between these two tracks; that the coal cars projected from the track two feet; that between the cars, if on the tracks, there would be a distance of about 3 feet in the clear. Witness Bearnson testified that, just before Johnson was struck, he crossed the track where Johnson was working, and the train was then 300 yards away, and Johnson could have seen the train if he had looked, as he was then under the edge of the trestle, back 3 or 4 feet from the main track. When

placed at work a day or two before the accident, plaintiff was told by his employer to look out for the train coming up the track. A brakeman was on the end of the flat car as it approached the place where Johnson was located. This brakeman was in plain sight, but witness did not see him make any motions or signs to any one. It required about one hour each day to shovel off the slack between the tracks. Thompson, a witness for the plaintiff, testified that a person would have to be 30 or 40 feet down the track from the trestle work, away from where the plaintiff stood, before he could hear the train whistle, on account of the noise. The witness Bearnson testified that a man could hear the whistle when blown 500 yards down the track, if not employed working at the time. On motion of the defendant, the court granted a nonsuit. From this judgment of nonsuit the plaintiff appeals, alleging error on the grounds (1) that defendant failed to ring the bell or blow the whistle, or give any warning of the approaching train; (2) that it failed to have a man at the rear end of the train as a lookout; (3) that it failed to stop the train after it was seen that the plaintiff was in danger; (4) that it backed the train of cars up the cañon upon the track upon which plaintiff was at work, without a sufficient or proper lookout.

Powers, Straup & Lippman, for appellant. Bennett, Harkness, Howat, Bradley & Richards, for respondent.

After stating the facts, MINER, J., delivered the opinion of the court.

The testimony shows that no custom prevailed on the part of the company to ring the bell or blow the whistle at each approach of the train, although it appears that the whistle was blown sometimes when the train approached that locality, from three to five hundred yards away. It also appears that, had this precaution been taken, the plaintiff would not have heard such signals at the point where he was working, when at work, on account of the noise made by the elevator crushing coal. In order to hear the whistle, a person would have to be 30 or 40 feet below the trestle. There was consequently no negligence shown on the part of the defendant in omitting to blow the whistle or ring the bell. Under the circumstances shown, the defendant owed the plaintiff no duty in this respect. The law does not require the doing of useless and unnecessary things in order to avoid possible injury to another.

2. The testimony shows that the company had a brakeman on the rear car as it approached the place where the plaintiff was at work, but such brakeman was not seen to make any signals or motions to any one at the time when the train was some distance away from the plaintiff. There was no occasion for the brakeman to make signals or signs, unless he could see that the plaintiff

was in danger. The plaintiff may have been standing between the timbers and the train, so as not to be observed. Had he been upon the track, he could have been seen. However, the plaintiff was shown to be about three feet south from the main track when the train approached him, as testified to by Thompson. If the plaintiff was looking, he could have seen the train; and, if he was not looking, he would not have seen the motions made by the brakeman on the lookout. The plaintiff testified that, if the brakeman had shouted to him, he might not have heard him when the train approached, as there was so much noise, and that he did not realize that any one shouted. There being a man on the lookout, in the absence of anything to the contrary the presumption is that he did his duty, and that the company performed its duty in that respect.

3. The testimony also tends to show that the main track was 7 feet from the side track on which the empty flat cars stood, into which the plaintiff was shoveling slack. This car projected 2 feet from the track, leaving 5 feet between the main track and the flat car. The slack fell from the cars above between the tracks below, so there was no necessity for the plaintiff to go upon the main track to shovel coal into the flat car. When the train was 300 feet away, backing up towards the place where the defendant was injured, the plaintiff was 3 or 4 feet from the main track, and not in a place of danger. When the plaintiff left that place does not appear, and there is no testimony to show that plaintiff was seen, or could be seen, by defendant's employés, to be in a place of danger, in time for them to prevent the injury, after his situation was known. Neither is it shown that plaintiff was not hidden from view of the man on the lookout by the upright timbers supporting the trestle. Under these circumstances, the defendant was not shown to have been in fault. 4. It also appears that the plaintiff was a man of mature years, and acquainted with the locality in question, as well as the manner of running the trains, and did not rely on any warning from the company, nor had the company been in the habit of giving him warning, of the approach of its trains. When plaintiff was placed at work in this locality, a day or two before the injury, he was told by the foreman, who put him at work, to look out for the trains coming up the cañon. trains came up twice a day, and plaintiff was only required to work about one hour each day. It was therefore as much the duty of the plaintiff to be on the lookout for the trains, as it was to perform the work assigned him. There was nothing in the situation to distract his attention, as might have been the case had he charge of moving machinery. had plenty of opportunity to look and watch for approaching trains, and it was his duty to use his senses to protect himself from the danger arising from such an employment. His duty did not call him upon the main track, and the defendant had the right to in

The

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fer that he would not unnecessarily place himself in danger. The defendant cannot be held guilty of negligence in backing its train in the manner it did, unless it was shown that the plaintiff was seen or known to be in a place of danger, and liable to be injured by moving trains, in time for the defendant to have stopped the train so as to avoid injury. The plaintiff was struck upon the side of his head and shoulders. The location of the injury indicated that he was partly facing the track, and by the timely use of his eyes he could have discovered the train coming down the 300 yards of track in time to have placed himself out of danger. It was a part of his duty to watch for the train. In performing his work, it was not necessary for him to be within reach of the moving train. We are of the opinion that there was no evidence to warrant the court in submitting the case to the jury. Nor was there any evidence to warrant the jury in finding that the defendant failed to perform any duty it was owing to the plaintiff, or was guilty of any negligence that caused, or contributed to the cause of, the injury complained of. On the contrary, the evidence shows that the plaintiff failed to exercise reasonable and ordinary care for his own safety. Where facts are undisputed, and but one reasonable inference can be drawn from them, whether there was contributory negli gence on the part of the plaintiff is a question of law, for the court. Bunnell v. Railway Co., 13 Utah, 314, 44 Pac. 927; Fowler v. Coal Co., 16 Utah. 348, 52 Pac. 594; Butte v. Same, 14 Utah. 282, 47 Pac. 77. The judgment of the district court is affirmed, with costs.

BARTCH, C. J., and BASKIN, J., concur.

(19 Utah, 103)

HOAGLAND v. HOAGLAND. (Supreme Court' of Utah. March 17, 1899.) HUSBAND'S RIGHT TO ALIMONY-JUDGMENT-COLLATERAL ATTACK― JURISDICTION OF PARTIESJUDGMENT ROLL-WHAT CONSTITUTES-IMPEACHMENT-RECITALS IN DECREE-ORDER FOR PUBLICATION-ABSENCE FROM RECORD.

1. A husband is not entitled to alimony or an allowance except as provided by statute, and, there being no Colorado statute granting a husband alimony, section 485, Gen. St. Colo. 1883, applies only to actions by a wife against her husband. In an action by the husband he is not obliged to relinquish something which he could not recover in any event.

2. Where a judgment is attacked collaterally, the jurisdiction of the parties can only be determined by an inspection of the record.

3. Under the provisions of section 210, p. 82, Civ. Code Colo. 1877, the summons, the affidavit or proof of service, the complaint, with a memorandum of default indorsed, and a copy of the judgment, constitutes the judgment roll; and nothing else, even if it appears of record, can be used to impeach the decree when attacked collaterally.

4. Recitals of jurisdictional facts in a record and decree import verity and binding effect, and must be so treated when attacked collaterally.

5. In a collateral attack upon a judgment, absence from the record of an order for publication of summons, when service was had by publication, in no manner vitiates the decree, where the decree recites the necessary jurisdic tional facts, and the filing of the order for publication is not required by the statute.

6. In a collateral attack upon a judgment, when other portions of the record are silent, and there is nothing to dispute the recitals in the decree, the presumption is that the court acted upon proper evidence before it, even if there is no statute defining what the judgment roll shall contain.

(Syllabus by the Court.)

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Action by Maggie Hoagland against Frank Hoagland. Judgment for defendant, and plaintiff appeals. Affirmed.

Shepard & Sanford, for appellant. C. F. & F. C. Loofbourow, for respondent.

PER CURIAM. This action was brought in Salt Lake county, on October 27, 1897, by the appellant against the respondent for the purpose of obtaining permanent alimony under chapter 33, p. 111, Laws 1896. The parties were married at Buena Vista, Colo., in July. 1881, and lived together in Colorado from one to three months. The complaint alleges that one child was born of the marriage, who is now about 15 years old, residing with the plaintiff; that the defendant is and has been a resident of Utah for five years, and owns real estate and personal property in this state; that during the year 1883 the defendant willfully abandoned and deserted the plaintiff, and has continued such desertion and abandonment against her will, and has failed to provide her with the necessaries of life during that period, although able to do so. The plaintiff in her complaint prays for the allowance of alimony, attorney's fees, and expenses of suit. The defendant answered, admitting the marriage in Colorado, July 1, 1881, but denies that the parties are now husband and wife, denies that the plaintiff is a resident of Utah, denies the desertion of the plaintiff, as alleged in the complaint, denies that the par ties lived together as husband and wife to exceed one month from the date of the marriage, denies that the child was born of said marriage, and alleges that in August, 1881, the plaintiff deserted and abandoned the defendant without cause, and left the abode of defendant, and refused to return or live with him as his wife, and that such desertion continued until he was divorced from her, in March, 1886; that on the 8th day of March, 1886, he obtained a decree of divorce from the plaintiff in the county court of San Juan, Colo., in an action in which the defendant herein was plaintiff and the plaintiff herein was defendant; that said court had full jurisdiction in said case, and said decree was entered of record in said court, dissolving the bonds of matrimony then existing between them, and released the defendant from any and all obligations growing out of said marriage rela

tions; that said decree stands in full force, and has never been reversed; that the plaintiff had full knowledge and notice of said decree; that the alleged cause of action is barred by section 3150, Comp. Laws Utah, 1888; that the plaintiff is guilty of laches; and that the defendant in reliance upon said decree of divorce contracted a marriage, and is now the lawful husband of another woman.

Upon the hearing of the case, it appeared that while the parties lived in Colorado, and after their separation, the defendant filed his complaint against the plaintiff for divorce upon the ground of plaintiff's desertion of him, and that upon the 8th day of March, 1886, a decree of divorce was granted to the defendant, Frank Hoagland. Mr. Hoagland removed from Silverton to Durango, Colo., in 1888, where he lived two years, after which he came to Salt Lake City, Utah, and in 1895 he was married to another woman. In 1886, Mrs. Hoagland brought a suit against Mr. Hoagland in La Plata county, Colo., for maintenance. This suit was afterwards dismissed. Shortly after this she was informed by Mr. Hoagland of his decree of divorce obtained from her in San Juan county. In May, 1889, Mrs. Hoagland commenced a second suit for divorce from Mr. Hoagland in Lake county, Colo. Summons was personally served in this case. This case was dismissed November 20. 1894. On November 22, 1894, Mrs. Hoagland commenced a third suit for divorce in Lake county, Colo. Mr. Hoagland was then living in Salt Lake City, and the summons was served upon him here. This last suit was since dismissed. In the fall of 1897, Mrs. Hoagland came to Salt Lake City, and commenced the present action for support and maintenance. Upon the trial of this case, the court dismissed the action, and the plaintiff appealed.

Plaintiff attacks the decree and judgment awarding Frank Hoagland a divorce on the ground that it is void, and that the court had no jurisdiction of the subject-matter of the action or the person of the defendant. The first ground alleged is that section 485 of the General Statutes of Colorado of 1883 provides that "in all actions for divorce the petition or bill of complaint shall aver that the plaintiff does not ask or seek alimony in excess of the said sum of two thousand dollars," and that the complaint shows upon its face that this allegation was not contained therein. No adjudications under this statute have been called to our attention. Alimony is defined to be an allowance which a husband by order of court pays to his wife living separate from him for her maintenance. Gen. St. Colo. 1883, p. 398, § 1098, in force at the time of this proceeding, makes provision for the allowance of alimony to a wife, but nowhere, so far as we can dis cover, makes any provision for the allowance of alimony to the husband. The supreme court of Colorado, in the case of Meldrum v. Meldrum, 24 Pac. 1083, say that the wife alone can maintain an action for alimony. To the

same effect are Somers v. Somers, 39 Kan. 132, 17 Pac. 842, and 2 Am. & Eng. Enc. Law (2d Ed.) p. 92. So far as we are able to ascertain, the husband is not entitled to alimony or an allowance out of the property of his wife, except as provided by statute. It is evident therefore that the section of the statute referred to applies to cases commenced by the wife for divorce and alimony, and not to cases commenced by the husband, as it would seem to be wholly unnecessary for a plaintiff in a complaint to relinquish a thing which he could not recover in any event. We are of the opinion that the statute refers to that class of divorce cases where alimony can legally be recovered.

Defendant, Frank Hoagland, made and filed his complaint in San Juan county, Colo., November 5, 1885, to procure a decree of divorce from Maggie Hoagland, the plaintiff herein, on the ground of desertion. Summons was duly issued on such complaint, and the sheriff made return that he was unable to find the defendant in his county. The plaintiff made an affidavit for an order of publication of summons, dated November 9, 1885, in substantial compliance with the statute, as held in Calvert v. Calvert (Colo. Sup.) 24 Pac. 1043. Aside from the recitals in the decree, it does not ap pear that any order of publication was made or filed with the clerk. The record is silent upon this subject. It does appear that the summous was published, and an affidavit of publication of the summons and notice of publication was made, by the publisher of the Animas Fork Pioneer, a newspaper published in San Juan county, Colo., and that such notice was first published November 7, 1885, and was published thereafter in each weekly issue of said newspaper, for five weeks, for the full period of thirty days, the last publication being in the issue dated December 12, 1885. The decree of divorce was granted March 8, 1886, and recites, among other things, that "it appears to the court that a summons was regularly issued in this cause, and that said summons was duly served upon the above-named defendant by publication of the same for more than four weeks, under the order of this court more than eighty days prior to this date, in the Animas Fork Pioneer, and in the manner prescribed by law; and, the defendant having failed to appear and answer the plaintiff's said complaint or demur thereto, as required by law, the default of the defendant in the premises was thereupon duly entered of record."

The appellant contends that the clerk of the court should grant the order of publication under section 44 of the Colorado Code, and that as no order was made or filed, as appears of record, the publication of the summons was without authority, and the judgment therefore invalid. Appellant also contends that the publication was commenced, as appears by the publisher's affidavit, November 7th, while the affidavit for publication was not filed until November 9th, as appears from the jurat.

The first question to be determined is, did the county court of San Juan county, Colo., have jurisdiction of the parties? At the time the suit was commenced and the decree obtained, both the parties resided in Colorado, and were subject to its laws. The judgment was a domestic judgment, rendered by a court of record of the state of the domicile of the parties. The judgment is attacked collaterally. In a collateral proceeding, the question of the jurisdiction of the parties can only be determined by an inspection of the record. Amy v. Amy, 12 Utah, 278, 42 Pac. 1121. The judgment rendered in this case in Colorado upon substituted service of process, such as the law has authorized, should be considered as standing in the same situation, and as binding between the parties in this and every other state, as a bar to a second suit, and as conclusive upon the defendant as it is in the state where it was rendered. 2 Black, Judgm. §§ 926, 927. The county court of Colorado is a court of record, and is invested by the statutes of that state with jurisdiction in divorce cases. Mills' Ann. Code, § 1054; Coon v. Rigden, 4 Colo. 279. This being so, the record is conclusive on all questions of fact when collaterally attacked. Vanfleet, Coll. Attack, § 576.

The question then raised is, what constitutes the record in this case? By the provisions of section 210, p. 82, Civ. Code Colo. 1877, in force when this judgment was entered, it is provided that, in case the complaint is not answered by any defendant, the summons, with the affidavit or proof of service, and the complaint, with a memorandum indorsed upon the complaint that the default of the defendant in not answering was entered, and a copy of the judgment, shall constitute the judgment roll. We find no provision of the Colorado statute requiring the order for publication to be filed or made of record. This judgment roll constitutes the record. Therefore neither the affidavit to obtain publication, nor the order for publication, if they both appeared in the record, could be used to impeach the decree in a collateral attack upon the judgment, because they are not a part of the record or judgment roll. This doctrine was clearly held by our territorial supreme court in the case of Amy v. Amy, 12 Utah, 278, 42 Pac. 1121, a case involving the same questions as are here presented, under a similar statute of this state, and is supported by Hahn v. Kelly, 34 Cal. 404; Sharp v. Daugney, 33 Cal. 512; Quivey v. Porter, 37 Cal. 464. It will be seen by the recitals in the decree that it appeared to the court that the summons was duly served by publication, under an order of the court, in the manner provided by law, and that the default of the defendant was duly entered of record. These recitals in the record and decree of the court import verity, and are of binding effect, and must be so treated for all purposes of this collateral attack upon the judgment. Thus, in this case, it must be taken that the court acted upon proper evidence, as

certained and set forth in the record the fact that the defendant in the proceeding was duly served by publication under the order of the court, and such adjudication is conclusive when the judgment is collaterally attacked. The affidavit for publication and the order of the court of general jurisdiction issued thereon, not being a part of the record or judg ment roll, the court will not look into the record to ascertain whether or not they were properly made. or filed, when the judgment is collaterally attacked, and nothing appears from the record to dispute the recitals in the decree showing jurisdiction.

But it is claimed by the appellant that section 210, p. 82, Civ. Code Colo. 1877, has been repealed. We find no conclusive evidence of the repeal of this statute; but, if we concede that it has been repealed, and there is no statute in Colorado defining what the judgment roll shall consist of, this will not change the result. The record is silent as to whether any order of publication was ever granted by the court, except as is stated in the decree. The decree recites the fact that the summons was duly served by publication, under an order of the court, in the manner provided by law, and that the default of the defendant was duly entered of record. This is a collateral attack upon the judgment, and not a direct attack, as counsel seems to conclude. In a collateral attack, this question can only be determined by an inspection of the record. If the record is silent, then the presumption follows that what ought to have been done was not only done, but rightfully done. The presumption in such a case is that the court acted with due authority. But the record is not silent. The decree shows that the summons was duly published, under an order of the court, in the manner provided by law. These findings and recitals in the decree are as conclusive upon all the parties in a collateral attack as any other adjudication by the court. When other portions of the record are silent, and there is nothing to dispute such recitals, the presumption is that the court acted upon proper evidence before it. The affidavit for publication does not dispute the recitals in the decree.

In the case of Amy v. Amy, 12 Utah, 310, 46 Pac. 1124, it is said: "After determining that the court has jurisdiction of the subjectmatter, the next inquiry is, did it have jurisdiction of the person? In collateral proceedings, this question can only be determined by an inspection of the record. If it is silent, then the presumption follows that what ought to have been done was not only done, but rightly done. In a collateral attack, the omission to affirm a jurisdictional fact upon the record will be supplied by the presumption that the court acted with due authority, and its judgment will be as valid as though any fact necessary to jurisdiction affirmatively ap peared. But the record in this case is not si lent upon this jurisdictional question. The de