Appeal from First District. first loaded were the ones first unloaded plaintiff did not know. At the close of plaintiff's testimony defendant's motion for a nonsuit was granted by the court. From that judgment plaintiff appeals. Plaintiff contends that there was evidence tending to prove defendant's negligence, and that its negligence in unreasonably delaying the placing of cars in position for unloading was the proximate cause of the death of the sheep. It was defendant's duty to place the cars in proper position at the chute with reasonable promptness, so that they could be unloaded without unreasonable delay. If the time of unloading was unreasonably delayed by the acts of defendant, its conduct constituted negligence for which it would be liable if damage resulted. If because of negligent delay the sheep were exposed to a cold wind that caused the death of some of them, such loss would be chargeable to defendant, but if without negligence on the part of defendant the sheep died from exposure to cold plaintiff would not be entitled to recover. There was a delay of not more than three hours. Whether want of diligence by defendant caused the delay does not appear. For some two or three hours no train was at Cavinaugh, and hence no engine could be obtained during that time for placing cars in position. There is no evidence showing that defendant could, without the abandonment of trains or without impeding transportation on its main line, have had an engine and crew at Cavinaugh during the period complained of. The mere fact of delay does not prove negligence, nor does the delay of two or three hours 1-3 in the case at bar furnish any indication that the delay was unreasonable, or that there was any want of diligence on the part of defendant. The sheep having arrived at Cavinaugh in good condition, and being in good condition when taken off the cars, the burden of proof on the charge that there was unreasonable delay in putting the cars in position for unloading was upon plaintiff. The burden was also on plaintiff to prove that the defendant's negligence was the proximate cause of the loss of sheep. It took plaintiff ten Smart v. Oregon Short Line R. Co., 54 Utah 606. hours to load the sheep. He made no request to unload first the cars that were loaded first. He made no request of the engine crews to put cars in position for unloading while plaintiff and his men were driving sheep to the pasture. In the evening no complaint was made by him of delay. It is apparent from plaintiff's conduct that the complaint about unreasonable delay by defendant was an afterthought only. Plaintiff had unloaded sheep at Cavinaugh before. He knew that no switch engine was kept there and that the work of switching and placing cars in position for unloading must be done with engines detached from passing trains. He knew that Cavinaugh was on the main track, and traffic could not be impeded that the unloading of his sheep might be expedited. 4 Was any negligence proven? We think not. Is there even a scintilla of evidence tending to prove negligence? We think not. Is there any evidence whatever tending to prove that defendant's negligence was the proximate cause of the damage? We think not. A finding for plaintiff could have no basis save conjecture. If there were any doubt as to the inferences which should be drawn from the undisputed facts in this case, we would not approve the ruling of the district court. Being convinced that reasonable men exercising a fair judgment must arrive at the same conclusion from the facts in this case, and that such conclusion must be that there was no proof of defendant's negligence, we are constrained to hold that the judgment should be affirmed, with costs to respondent. It is so ordered. CORFMAN, C. J., and GIDEON and THURMAN, JJ., concur. FRICK, J. (concurring). I concur. I desire to add to what is said by Mr. Justice WEBER, however, that in this case the parties entered into a contract of shipment wherein the plaintiff agreed to load the sheep at the initial point of shipment and to unload Appeal from First District. them after their arrival at their destination. The sheep were agreed to be transported and unloaded at a way station on defendant's line where the facilities for unloading were as stated by Mr. Justice WEBER, and where the business of the defendant did not justify the maintenance of a separate switching engine and crew. These facts were all within the knowledge of the plaintiff when the contract of shipment was entered into. Moreover, the sheep were being transported for pasturage merely, and not to be delivered to market. In' view of the foregoing conditions, the unloading of the sheep necessarily was largely under the direction and control of the plaintiff. If, therefore, he desired to have the crew of the second train referred to in Mr. Justice WEBER'S opinion remain to switch and spot the cars, it was his duty to so inform that crew at the time. He could not, under the circumstances, stand by and remain silent while the defendant's servants were carrying on its business in the regular and ordinary way, and then complain that the cars were not promptly switched and spotted. For aught that appears in this record the plaintiff was satisfied with the manner in which the work was being done. At any rate, until he made complaint the train crew had a right to assume that the unloading was being done to suit him. If he was then satisfied, he should not afterwards be permitted to change his position to the detriment of the defendant. Had he complained then and the defendant had refused to switch and spot the cars with reasonable dispatch after he had made such complaint, or if he had requested that the cars be switched and spotted at once, or as soon as that could be done after their arrival, the case would be quite different. No well-considered case, in my judgment, can be found where, under conditions like those in this case, the courts have authorized a finding of negligence. See Gilbert v. Railroad, 132 Mo. App. 697, 112 S. W. 1002; Rogers v. Texas P. Ry. Co. (Tex. Civ. App.) 94 S W. 159; Cincinnati, etc., Ry. Co. v. Case, 122 Ind. 310, 23 N. E. 797; Sou. Pac. Co. v. Arnett, 126 Fed. 75, 61 C. C. A. 131; Ecton v. C. B. & Q. Ry. Co., 125 Mo. App. 223, 102 S. W. 575; St. L. & S. F. Co. v. Vaughan, 84 Ark. 311, 105 S. W. Smart v. Oregon Short Line R. Co., 54 Utah 606. 573; Houston & T. C. R. Co. v. Davis (Tex. Civ. App.) 123 S. W. 1160; Hunt v. Railway Co., 187 Mo. App. 639, 173 S. W. 61; Gregory v. C., B. & Q. R. Co., 174 Mo. App. 550, 160 S. W. 830; McDowel v. Mo. P. Ry. Co., 167 Mo. App. 576, 152 S. W. 435; Ridgeway v. Missouri, K. & T. Ry. Co., 161 Mo. App. 260, 143 S. W. 532; Sikes v. St. Louis & S. F. Ry. Co., 190 Mo. App. 181, 176 S. W. 255. In Southern Pac. Co. v. Arnett, supra, it is said: "Delays incident to ordinary transportation are the same as reasonable delays as delays consistent with ordinary care." In Houston & T C. R. Co. v. Davis, supra, a delay of three hours in stopping a train at a station was held not sufficient to take the case to the jury on the question of negligence. In Sikes v. St. Louis & S. F. Ry. Co., supra, a delay of five and one-half hours, two and three-fourths hours of which time was a delay in switching the cars to the unloading chute, it was held did not constitute an unreasonable delay, and hence was not negligence. It is not necessary to quote further from the cases, since in those quoted from the live stock was being shipped to be sold on the market, and yet it was held that the delays referred to did not constitute unreasonable delays. Under the circumstances I am clearly of the opinion that no culpable negligence is shown. INDEX ACTION. 1. FORMS OF ACTION-LEGAL OR EQUITABLE. In Utah, every person 2. CONSOLIDATION OF ACTIONS-IDENTITY OF PARTIES. Actions by 3. ACTION FOR INJURIES-COLLISION WITH TRUCK-FINDINGS AS TO 4. VERDICT AND FINDINGS. In an action for injuries sustained in 5. COLLISION-QUESTION FOR JURY-CONTRIBUTORY NEGLIGENCE. In 6. ACTION FOR INJURIES-COLLISION IN STREET-NONSUIT. In action 7. COLLISION WITH TRUCK-ISSUES. In an action for injuries re- |
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