shows that his own negligence contributed to, and was the proximate cause of, the injury, the question of negligence becomes one of law, for the court. Lowe v. Salt Lake City, 13 Utah, 91, 44 Pac. Rep. 1050.

5. Where the plaintiff in a suit to recover damages for injuries shows by his own evidence that he was guilty of contributory negligence which was the proximate cause of such injuries, the defense is relieved from the burden of proving such negligence, and the plaintiff cannot recover.

road Co., (Utah) 59 Pac. Rep. 92.

(Syllabus by the Court.)

APPEAL from District Court, Salt Lake County.

Clark v. Rail

Action by Alma D. Silcock against the Rio Grande Western Railway Company. From judgment for defendant plaintiff appeals. Judgment affirmed.

D. HARRINGTON and G. M. SULLIVAN, for appellant.

BENNETT, HARKNESS, HOWAT, SUTHERLAND & VAN COTT, for respondent.

BARTCH, Ch. J. This action was brought to recover damages for injury to personal property and for personal injuries claimed to have been occasioned through the negligence of the defendant. It was, among other things, alleged in the complaint that the defendant, in disregard of its duty, failed to announce the arrival of its train, and carelessly, unlawfully, and negligently ran and managed a locomotive and train belonging to it, on its track, crossing a public highway, and "that the same ran against and partially over said property," killing a span of mares, and injuring other personal property and the plaintiff. The defendant, in its answer, denied negligence on its part, and charged that the plaintiff was guilty of negligence which caused the injuries of which he complains. From the testimony of the plaintiff it appears that on January 29, 1898, he went with his team to defendant's railway station to purchase coal. When he arrived there he stopped his team at a point on the public road" twenty to thirty feet" from the railway track, facing the same. He then applied the brake, and tied the lines to his wagon, and went to the depot, on the north side of the highwny, to arrange with the agent for the coal. The agent not being there, he stepped west across the track, about sixty feet, to the coal bins, to ascertain if there was any coal to be had. While there he heard the rumbling of an incoming train, which was then close to the station, and hastened back to his team, and got into the wagon and hold of the lines, when his horses became frightened and unmanageable and collided with the train. The injuries resulted from the collision. The whistle on the engine was not blown, nor the bell rung, until immediately at the crossing. It was the north-bound

passenger train, called the "Flyer," running at a rate of fifty to sixty miles an hour. That train, according to plaintiff's testimony, generally passed there somewhere "about a quarter to twelve," but on this occasion it arrived about "half-past twelve or a quarter to one." The plaintiff had not noticed it come, but supposed that it had gone. He testified that this particular train generally went through there rapidly rapidly enough to probably frighten his team. He also testified that on a previous occasion, with a load of beets, he stopped at the same place while the train was passing, sat in the wagon, and held the team. Such are, substantially, the material facts shown by the plaintiff's testimony. After he rested his case the defendant made a motion for a nonsuit upon the groundsthat no negligence on the part of the defendant was shown, and that the evidence shows that the plaintiff was guilty of negligence which contributed proximately to the injury. The motion was sustained, and the plaintiff appealed.

The decisive question presented is, was the appellant guilty of such contributory negligence as prevents his recovery? That is, assuming that the respondent was negligent in not sounding the whistle or ringing the bell at a proper distance from the public crossing, was the appellant guilty, as shown by his own evidence, of negligence which contributed proximately and materially to the accident, so that, as matter of law, he cannot be permitted to recover? Due consideration of the facts and circumstances appearing in evidence impels the conclusion that this question must be answered in the affirmative. The proof leaves no room for doubt that if the appellant had proceeded with ordinary care about the railway station, he could have averted the accident. He was there on a previous occasion with his team when the same train passed at a rapid rate of speed, and knew that it was a fast train, and would probably frighten his horses in passing them. He knew about the usual time when it passed the crossing, and that it did not stop there; and, although the regular time for its arrival had passed, still he had not seen nor heard it pass, on his way to the depot. Aware of these things, he had no right to assume that it had passed. He was chargeable with knowledge of the fact that the train might be late, and that it or any other train might pass there at any time; the track on which the train was running being the main line of the respondent's system. Under such circumstances, for the appellant to drive his horses to within "twenty or thirty feet" of the track, and then leave them standing there on the highway alone, without being tied, and without, so far as appears from the evidence, looking or listening for a train, and go to the depot, thence to the coal shed,

sixty feet across the track the team remaining all the while so untied — is, to say the least, culpable negligence. Suppose by the striking of the team the train had been derailed and some person killed; would not the act of thus carelessly leaving the team within twenty or thirty feet of the track, unattended, have been characterized as gross negligence? Yet the more serious consequence would not have changed the character of the act. The appellant was bound to exercise ordinary care, and that, according to the facts disclosed, demanded that the team should be left at a greater distance from the track, or at least securely tied. Such care also required him to look and listen for an approaching train before and after leaving his team. No rule of law authorizes a person to thus recklessly leave his team upon the highway, within a few feet of a railway track, unattended, and not even tied. In Bunnell v. Railway Co., 13 Utah, 314, 44 Pac. Rep. 927, where the plaintiff had turned his cattle upon the highway in the vicinity of a railway track, unattended, and one of them was killed by a passing train, this court said: "A proper regard for the safety of humanity and of property forbids that a person should turn his beasts, which can neither reason nor appreciate danger, out upon the highway, without a keeper, in the vicinity of a railway crossing; and especially is this true where such person knows that they must cross the track to get to the pasture where their instinct leads them. The sacredness of human life and common sense alike dictate this rule."

Although he thus left his team upon the public highway, there is nothing in the testimony to show that the appellant either looked or listened for this or any train, either before or after arriving at the depot, until he heard the rumbling noise as the train approached; and yet it appears that there was nothing to obscure his vision, and that one could see a quarter of a mile or more down the track. If, therefore, the appellant, even after he had so left his team, had used his senses, as the law required him to do, he could, in all probability, have averted the accident. Having left his team in such a reckless manner, and having failed, as indicated by the record, to look and listen or use his senses, he is in no position to complain that the whsitle was not sounded, nor the bell struck, nor of any failure of the respondent to give notice of the arrival of trains, because his own carelessness contributed so far to the accident that he has no right to complain of others. Negligence of the respondent in these particulars, if there was any, was no excuse for negligence on his part. Where a person permits a team to stand upon a public highway in close proximity to a railroad track, or is about to cross such track, he is bound to look and listen, in order to avoid

an approaching train and the happening of an accident. Ordinary care, under such circumstances as are disclosed in this case, requires this. In Railroad Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542 (1), where a lady was killed by an approaching train, Mr. Justice Field, delivering the opinion of the court, said: "She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others." The appellant having been familiar with the locality of the crossing, and knowing that a train was liable to pass there at any time, and that the train in question was usually run at a high rate of speed without stopping at that place, it was negligence on his part to place himself and team in such a position that he could not control it when the train passed them. "The principle which requires that a man shall use his ears and eyes in crossing a railroad track, so far as he has opportunity to do so, equally demands that he shall employ his faculties in managing his team, and thus keep out of danger." Salter v. Railroad Co., 75 N. Y. 273; Schaefert v. Railway Co., 62 Iowa, 624, 17 N. W. Rep. 893; Railroad Co. v. Talbot, 48 Neb. 627, 67 N. W. Rep. 599; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. Rep. 1125, 29 L. Ed. 224; Brady v. Railway Co. (Neb.) So N. W. Rep. 809; Railway Co. v. Howard (Ind.' Sup.) 24 N. E. Rep. 892; Stahl v. Railroad Co., 117 Mich. 273, 75 N. W. Rep. 629.

Nor did the fact that this particular train was behind time relieve the appellant from his duty of exercising ordinary care at and about the railroad crossing, to avoid accident. Railroad corporations have the right to run their trains at any and all times, and travelers upon a highway, at a railway crossing, are entitled to no exemption from care and vigilance because trains are not run at regular schedule time. In Clark v. Railroad Co., 59 Pac. Rep. 92, this court, speaking through Mr. Justice Baskin, said: "A railroad has as much right to use special trains as to use regular trains. As to how many or at what time a railroad company shall run trains over its track is not restricted by law. It is a matter of common knowledge that the necessities of railroad transportation require the frequent use of special trains, and that such trains are liable to pass along the track at any time."

1. Chicago, R. I. & P. R. R. Co. v. Houston, 95 U. S. 697, is reported in 7 Am. Neg. Cas. 345.

Nor can the fact that the train in question was run at a high rate of speed avail the appellant. The accident happened at a highway crossing in the country — outside, so far as shown by the testimony, of the limits of any village or city - where the railroad company was not limited to any particular rate of speed. The company was therefore entitled not only to run its trains at any and all times to suit the business demands of the people, but also at such rate of speed as the condition of its roadbed would permit, so as to afford rapid transit to the public; and there is nothing to show that the train in question was run more rapidly than the condition of the roadbed warranted. In Bunnell v. Railway Co., supra, this court said: "Unless the condition of its road demands it, a railroad company is not required to run its trains at a low rate of speed through a sparsely settled country, or to check the same at ordinary highway crossings, outside of cities and villages, and to do so would greatly interfere with its usefulness as a common carrier."

If it be admitted that the respondent was negligent as to some of the matters referred to, still the evidence introduced by the appellant in attempting to prove his case shows clearly that his own negligence contributed to, and was the proximate cause of, the injury. The irresistible conclusion from an examination of all the testimony is that the proof is of such a character that, if taken with every legitimate inference which a jury could justifiably draw from it, it is insufficient to support a verdict. In such case the question of negligence is one of law for the court. The nonsuit was therefore properly granted. Lowe v. Salt Lake City, 13 Utah, 91, 44 Pac. Rep. 1050. Where the plaintiff, in a suit to recover damages for injuries, shows by his own evidence that he was guilty of contributory negligence which was the proximate cause of such injuries, the defense is relieved from the burden of proving such negligence, and the plaintiff cannot recover. This court, in Bunnell v. Railway Co., supra, as to the question of contributory negligence, said: "Generally contributory negligence is a matter of defense, and must be alleged and proven by the defendant; but where the testimony on the part of the plaintiff, who seeks to recover damages for injuries resulting from negligence, shows conclusively that his own negligence or want of ordinary care was the proximate cause of the injury, he will not be permitted to recover, even though the answer contains no averment of contributory negligence." Clark v. Railway Co. (Utah.) 59 Pac. Rep. 92; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. Rep. 1125, 29 L. Ed. 224; Pepper v. Southern Pac. Co., 105 Cal. 389, 38 Pac. Rep. 974; Salter v. Railway Co., 75