The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-12-08
AGAINST THE RAILWAY
Southern Pacific Defeated In the
Supreme Court.
SNowsHEDs TOO LOW
TRAINS WE'RE NOT PROPERLY
MADE UP.
Rock Case Surprises the County At
torney, Who Will Appeal From a
Courts Ruling On Demurrer
Shadrach Green Pleads Guilty
City Wins In the Haynes Case.


Two opinions We're handed down by
the supreme court. yesterday, both be-
ing similar in all essentials The first
was in the case of Alfred H. Nelson.
administrator OF the estate of Charles
A. Nelson. respondent VS.. the South
ern Pacific Railway company, appel
liant
The opinion was by the chief justice,
VINO says, in part:
This was an action to recover dam
ages in consequence of the death OF
Charles A. Nelson, caused, as alleged,
by the negligence of the defendant
company in placing three refrigerator
ears between the caboose and eleven
cars loaded with sheep, III charge Of
deceased and two other. men, ana in
COZ ~tructing and maintaining a snow
shed so low that deceased was killed
by il while passing over a refrigerator
car from the sheep cars to the caboose,
the refrigerator cars being about eigh-
teen inches higher than other freight
cars The trial of the cause commenced
on Jan. II, 1898. When the jurors were
called, the defendant challenged the
an as, because the commissioners who
selected them were not appointed prior
to the first day of the preceding Sep
atenber, as directed by section 1902, r.
). OK Utah, 1898.
On this point the court holds, as in
the case Of Kennedy VS.. the Oregon
Short Line, that the time for appoint
ing commissioners is directory, as Well
as the time for selecting jurors. The
language being directory, and not man
oatory, no error in denying defendants.
The court holds that it cannot re-
view findings of fact further than is
nee essary to determine questions Of
10 Ny fn1 Aad 70 =ox
One Philander V. Saunders was with
deceased when killed, and was injured,
although not fatally. His case has
been before the court once before.
After quoting its own opinion in this
former case, the court says the evidence
as TO the right of the deceased to be
upon the train are, in effect. the same
as in the other case. while the reasons
for putting the refrigerator cars be-
tween the sheep cars and the caboose
seem to be frivolous. and the evidence
fails to show any justification for main
tanning the SnoWShed so low as to en-
danger the lives of people rightfully on
top of the cars. 1t appears that sheds
recently built are high enough to allow
cars with persons standing upon them
TO pass safely through them. 1t is not
sufficient excuse to say the raising of
the sheds would involve additional eX-
penditures Of money. The company
should take all reasonable precautions
to prevent injury by giving timely
warning of danger. The sound of a
whistle might be sufficient to a person
understanding it to mean overhead
danger. but TO another not informed
of the meaning, it would not be suf-
1cient.
The judgment is affirmed, with costs.
Bartch, J.. dissents, in the following
language:
am Of the opinion that under the
facts and circumstances as they appear,
the question of custom ought to have
been Withdrawn from the jury, on the
ground that even if under conflicting
evidence respecting the custom, it be
held to have existed, it was unreason-
fable.
> Cherry, district judge, who sat in the
case. concurs.
The case Of Saunders being identical,
is also affirmed. the former case con-
trolling.
Cherry concurs and Bartch dissents.