be alleged and proven by the defendant; but where the testimony on the part of the plaintiff, who seeks to recover damages for inju ries 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 négligence." It follows, from the foregoing rules, which are well established, that, if the evidence in this case clearly shows that the plaintiff was guilty of negligence which materially contributed to the proximate cause of the injury complained of, then the trial court erred in refusing to instruct the jury as requested by defendant. J. B. Clark testified on behalf of plaintiff as follows: "I am a brother of the plaintiff. My son brings the cows from the pasture. At the time the cow was killed, she was kept in a ten-acre pasture that lies just south of the highway leading from Pleasant Grove to American Fork. There is a gate opening from the pasture onto the highway,-the county road. The highway at this point runs east and west. The railroad track comes onto the highway from the south at a point about 100 or 110 yards east of the gate that opens out of the pasture onto the highway." The son of the former witness testified for plaintiff as follows: "I know the cow that was killed. I went down to the pasture for the COWS. I went from Pleasant Grove west across the track to the pasture, and went in at the gate on the north side, and left the gate open, and the cow that was killed went out. There were six or seven other cows in the pasture, and I went down in the pasture around them to bring them up. The cow that was killed went out into the road, and started to turn across the railroad track. When the train struck this cow, I was still down in the pasture, driving up the other cows. I did not see the train strike the cow. I saw her when I walked along up there. She was lying in the middle of the road, dead. I saw the train go by. I was standing down in the pasture, towards the south end of the ten acres. I was after five or six other cows. I opened the gate, and left it open, for the cow that was killed, and she went out onto the road, where the railroad runs, and the next time I saw her she was dead. The first time I saw the train it was about where it comes into the highway. The train was running faster than a passenger train. There was no one helping me with the cows. If I had heard the train when it was at the depot, and had started up to the crossing, I do not think I could have got half way to the gate before the cow was struck, the way the train was running. The depot is about three blocks from the crossing. If I had not opened the gate until I got all the cows up there, I do not think this cow would have got out. The train had gone past before I got the other cows up to the gate. This was not the regular time for a freight train, and I did not * know a special train was coming." Lydia Walters testified for plaintiff as follows: "I saw the accident. Was about five rods away. No one was in the road with the COW. She was going to cross the track and go up the street. The first I heard of the train was when I heard it whistle out by the station. I was out by the fence. I started to drive the cow away, but I did not get there in time. The cow did not seem alarmed at all. When the whistle blew, she stood right there. She started to go across the track, when the train struck her." 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. Under these circumstances, as said by the present chief justice of this court in the case of Bunnell v. Railway Co., supra: "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 (or, as in this case, from the pasture to their home), where their instinct leads them." The accident under consideration would not have occurred if the gate, near which the cow was standing, and evidently at which she was waiting to be let out, had not been left open. Under the ruling in Bunnell v. Railway Co. we are of the opinion that the evidence clearly shows that the plaintiff was guilty of negligence which materially contributed to the killing of his cow. The judgment of the court below is reversed, with directions to grant a new trial, and it is ordered that respondent pay the costs. BARTCH, C. J., and MINER, J., concur. (21 Utah, 16) MCGARRY v. TANNER & BAKES CO. (Supreme Court of Utah. Nov. 23, 1899.) NONSUIT-MOTION-ACTION ON NOTE-PRIMA FACIE CASE-EVIDENCE. 1. When a motion for nonsuit is interposed, it becomes the duty of the court to assume as true all facts which could be properly found by a jury from the evidence, and then, after giving the plaintiff the benefit of every fair and legitimate inference and intendment which can arise from the evidence, in order that the court may grant the motion, it must appear that the plaintiff still has failed to prove his case.1 2. In an action against a corporation on a promissory note signed by two of the corporate directors, where it appears that the money was loaned on the credit of the corporation, on the 1 Lowe v. Salt Lake City, 44 Pac. 1050, 13 Utah, 91; Jennings v. Pratt, 56 Pac. 951, 19 Utah, 129, followed. representations of the managing director that the corporation needed the funds; that a check for a portion of the loan was made to, and indorsed by, the corporation; and that the interest was paid in merchandise out of defendant company's store,-a prima facie case is made out. (Syllabus by the Court.) Appeal from district court, Fifth district; E. V. Higgins, Judge. Action by James McGarry against the Tanner & Bakes Company. Judgment for defendant, and plaintiff appeals. Reversed. T. Marioneaux, for appellant. William F. Knox and D. D. Houtz, for respondent. BARTCH, C. J. The material allegations in the complaint in this case are, substantially, as follows: That W. H. Bakes was the active manager and superintendent, and had sole and exclusive charge of the business of the defendant, a corporation; that on February 13, 1896, Bakes requested the plaintiff to loan the corporation $250, and agreed, on behalf of the corporation, that, if plaintiff would loan it that sum, the corporation would repay him, on or before August 2, 1896, with interest at 12 per cent. per annum from date until paid; that then and there, in consideration of said promise of repayment, the plaintiff delivered $250 to Bakes, as the agent of the corporation, and for its use and benefit; that the agent, Bakes, immediately delivered the money to the corporation, which immediately received it, and applied the same to its own use and benefit, with the knowledge that the money had been furnished by the plaintiff; that, as security for the loan to the corporation, Bakes delivered to the plaintiff a promissory note, dated February 13, 1896, for $250, payable to plaintiff on or before August 2, 1896, with interest at 12 per cent. per annum from date thereof until paid, signed by Bakes and Moses Edwards; that at maturity of the note the plaintiff demanded payment from the makers, and, upon their failing to pay, demanded payment of the $250 loaned from the defendant, but it also refused and still refuses to pay; and that the whole sum remains due and payable to the plaintiff by the corporation. The complaint contains substantially the same allegations for a second cause of action in respect to a loan made to the defendant, by one W. P. Smith, of the same amount, on March 10, 1896, payable June 10, 1896, together with an allegation showing an assignment of Smith's cause of action to plaintiff. The answer admits the corporate existence of the defendant, denies generally the allegations of the complaint, and, as affirmative matter, alleges that Edwards, who signed the notes with Bakes, was indebted to the corporation, and, to reduce the indebtedness, he borrowed the sums of money sued for, and gave the notes, with Bakes as surety, and afterwards paid the same to Bakes, requesting him to apply it to such indebtedness, and that Bakes credited the amount to the account of Edwards. At the trial, when the plaintiff rested, on motion of defendant, a nonsuit was granted, and on this appeal the action of the court in the premises has been assigned as error. The motion, as shown by the transcript, was made on the ground "that the evidence introduced on the part of plaintiff does not establish the allegations of his complaint,— does not prove the facts therein stated." This motion presented no question of variance, nor did it attack the sufficiency of the complaint. Much of the arguments of counsel in their briefs, therefore, is not relevant to the controlling question presented by the motion, which is simply whether the proof established a prima facie case. It will be noticed from the pleadings that the two sums of money sued for were admittedly borrowed from the plaintiff and his assignor, and the material issue, therefore, was as to who actually borrowed it,-whether Edwards or the corporatión. To determine whether or not a prima facie case was made out, we must ascertain what the proof was upon this issue. From the testimony it appears that W. H. Bakes, at the time the transactions in question took place, and for a number of years prior thereto, carried on the business of the defendant, which was a mercantile corporation, and had a store in Beaver City, Utah, known as the "TannerBakes Company's Store," of which Bakes was the business manager. Bakes called the plaintiff, McGarry, into the store, and applied to him for the money; saying he would give him two directors for security, one of which was Moses Edwards. He further represented to McGarry that he had to raise $500 for a drummer who was there and had to have the money. Thereupon McGarry gave him $250, -$105 in cash, and his check for $145. The check, which was dated February 13, 1896, was made to the Tanner-Bakes Company, as follows: "Commercial National Bank: Pay to the order of Tanner-Bakes and Company one hundred and forty-five dollars ($145.00). James McGarry." The check, when introduced in evidence, bore the following indorsement: "Pay to the order of McCornick & Company, bankers. Tanner-Bakes Company." It appears that, about two weeks after advancing the money, McGarry received the note, which was signed by Edwards and Bakes. Edwards had also applied to him to make the loan to the company. On cross-examination, the plaintiff, among other things, testified: "I gave the money to Tanner & Bakes Company. I read the name of Edwards and Bakes on this note. I took it that way, that they had a right to-that they were for the company. I never made any protest about the company not being on it. I accepted it with Bakes and Edwards on it. I supposed that was the Tanner-Bakes Company." It also appears that in the first instance, when Bakes applied to McGarry for the loan, the latter proposed to make it to the company. The evidence respecting the transaction with Smith on material points is quite similar to that respecting the loan from McGarry. In neither of these transactions does it appear that there was any suggestion that the money was being borrowed for Moses Edwards, and Edwards himself testified that he "didn't borrow any individually." There is also evidence tending to show that, whenever the company had given any written obligation for money, it was always made by the directors as individuals. It is further shown that interest on the McGarry loan was paid in merchandise out of the defendant's store. Without further reference in detail, it is clear that the evidence contained in the record is such that, if true, it establishes a prima facie case; and, "when a motion for nonsuit is interposed, it becomes the duty of the court to assume as true all facts which could be properly found by a jury from the evidence, and then, after giving the plaintiff the bonefit of every fair and legitimate inference and intendment which can arise from the evidence, in order that the court may grant the motion it must appear that the plaintiff still has failed to prove his case." Lowe v. Salt Lake City, 13 Utah, 91, 44 Pac. 1050; Jennings v. Pratt, 19 Utah, 129, 56 Pac. 951. The appellant's proof in this case was clearly of such a character as precludes a judgment of nonsuit. We do not deem it necessary to discuss any other question presented. The case is reversed, with costs, and the cause remanded, with directions to the court below to grant a new trial. MINER and BASKIN, JJ., concur. (20 Utah, 394) DICKERT v. SALT LAKE CITY R. CO. (Supreme Court of Utah. Nov. 4, 1899.) PERSONAL INJURIES - COMMON CARRIERSLIABILITY-NEGLIGENCE-CUSTOM-INSTRUCTIONS-REASONABLE CARE. 1. However usual the method of a common carrier, such as a street-railway company, in starting its cars, if that method is dangerous, and its use violative of the high degree of care which the carrier is required to observe regarding its passengers, and in the use of that method a passenger is injured, the carrier is liable. 2. In an action for damages for personal injuries alleged to have been caused by the defendant starting one of its cars, on which the person injured was a passenger, in a reckless, careless, and negligent manner, the question for the jury is whether or not in this particular instance the car was started in a negligent, dangerous, or improper manner; and an instruction which, in effect, charges the jury that, if the officers of the defendant, by experience, were satisfied in their own minds that the method used in starting the car was reasonably safe, defendant would not be liable, is erroneous. 3. In such a case, an instruction that, "the defendant, being a carrier of passengers for hire, the law imposes upon it a reasonable degree of care and foresight to prevent injuries to persons lawfully traveling in its cars,' is defective in not defining to the jury what, under the law, a reasonable degree of care is. (Syllabus by the Court.) Appeal from district court, Salt Lake county; A. N. Cherry, Judge. Action by Lorenz Dickert against the Salt Lake City Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed. C. F. & F. C. Loofbourow, for appellant. Pierce, Critchlow & Barrette, for respondent. BASKIN, J. This is an action in which the plaintiff, who is the appellant, seeks to recover for injuries sustained by his wife while she was a passenger on a street car of the defendant. The complaint, among other matters, not necessary to notice, alleges: "That after the said Anna Dickert had so entered into said car, and while she was walking from the entrance door thereof to a seat in the said car, and before she had time to take her seat or reach a place of safety, and before she had sat down in said car, the defendant suddenly, and without any warning, and recklessly, carelessly, and negligently, started said car and put the same in motion with a sudden and violent jerk, and thereby, and without any negligence on the part of said Anna Dickert, threw and prostrated the said Anna Dickert violently and with great force upon the floor of said car, whereby her right arm was broken in such a way that she was permanently injured, and lost the use of her right arm and hand permanently and for the remainder of her life, and was otherwise greatly injured and disabled in body." The answer denies the alleged negligence, and alleges contributory negligence on the part of plaintiff's wife. The jury found for the de fendant, and final judgment was rendered against the plaintiff. The motion of plaintiff for a new trial having been overruled, he appealed to this court. Exceptions were duly taken to and error assigned upon the following instructions: "(4) Although, as a general rule, a street-car company is not liable for injuries caused by the starting of its cars, yet it may be liable where the method or manner is unusual, and dangerous to passengers. If, when Mrs. Dickert entered the car in question, she exercised reasonable and ordinary care for her own safety, and proceeded as expeditiously as she could, under all the circumstances, towards a seat, and if, before she became seated, the car was started with a sudden, unusual, and violent jerk sufficient to throw her to the floor of the car, and which did throw her down while she was exercising ordinary care for her own safety, and as a result of said fall was injured, as alleged in the complaint, then such acts of the defendant, through its agents or servants, would constitute negligence, and the defendant would be liable to the plaintiff for damages sustained by him as a result of the fall of his wife, as explained in these instructions." "(6) If you believe from the testimony that the employés of the defendant were negligent, either in starting the car before Mrs. Dickert had become seated, or in starting the car with a sudden, unusual, or violent jerk, as explained in the preceding instruction, and if you further find that by reason of such negligence Mrs. Dickert was thrown to the floor of the car and injured, without any fault of her own,-the plaintiff will be entitled to recover a verdict for such amount of damages as the evidence shows he has sustained on account of the injury thus inflicted upon his wife." "(13) If you find in this case that the car was started in the ordinary manner, and without any unusual circumstances attending the same, and that in the course of its experience defendant had found that the manner adopted at this time was reasonably safe, and in no manner calculated to cause injury to any of the passengers; and if you further find as a matter of fact that the method ordinarily and upon this occasion adopted was reasonably safe, and not calculated to injure passengers,-then the defendant cannot be held liable, unless you find that by reason of her feeble health or extreme nervousness, of which the defendant had reasonable notice, she was entitled to extra care and precautions." Plaintiff objects to the use, in said instructions, of the following language: "Although, as a general rule, a street-car company is not liable for injuries caused by the starting of its cars, yet it may be liable where the method or manner is unusual, and dangerous to passengers. ** * * If, before she [the wife of plaintiff] became seated, the car was started with a sudden, unusual, and violent jerk. * * If you find that the car was started in the ordinary manner, and without any unusual circumstances attending the same," etc. By the use of this language, in the connection in which it was used, the jury was, in effect, instructed that the plaintiff was not entitled to recover unless the car was started in an unusual and dangerous manner, which was, in effect, the same as saying to them that, if the car was started in the usual manner, the plaintiff could not recover, although the usual manner was dangerous. The question for the jury was not whether the car was started in the usual or unusual manner, but whether the manner was such as the duty of the defendant to its passengers required; or, in other words, whether the car in this particular instance was started in a negligent, dangerous, and improper manner. However usual the method of starting the car may have been, if that method was dangerous, and its use violative of the high degree of care which the carrier is required to observe regarding its passengers, the defendant was liable. The following language of the court is also objectionable, to wit: "If you find in this case that the car was started in the ordinary manner, and without any unusual circumstances attending the same, and that in the course of its experience defendant had found that the manner adopted at this time was reasonably safe, and in no manner calculated to cause injury to any of its passengers; and if you further find as a matter of fact that the methods ordinarily and upon this occasion adopted were reasonably safe, and not calculated to injure passengers, then the defendant cannot be held liable." The question for the jury to determine was not whether, by experience, the defendant had found the manner adopted was reasonably safe, etc., but was whether the evidence in the case warranted the jury in so finding. The simple meaning of the terms "the defendant, in its experience, found," etc., is that the officers of the defendant, by experience, were satisfied in their own minds that the method used was reasonably safe. If the jury had found that the defendant, by experience, had found that the method was reasonably safe, etc., they would not, for that reason, have been warranted in returning a verdict for the defendant, because that fact was not germane to the issue, and did not in the least tend to establish that the method was in fact reasonably safe, etc. The court also instructed the jury that, "In this case the defendant, being a carrier of passengers for hire, the law imposes upon it a reasonable degree of care and foresight to prevent injuries to persons lawfully traveling in its cars." This instruction is defective in not defining to the jury what, under the law, a reasonable degree of care is, and, as claimed by appellant, was not, therefore, a proper statement of the law upon that question. The giving of each of the foregoing instructions tended to mislead the jury, and was erroneous. It is ordered that the judgment of the lower court be reversed, the case remanded for a new trial, and that the respondent pay the costs. BARTCH, C. J., and MINER, J., concur. (20 Utah, 457) UNIVERSITY OF UTAH v. RICHARDS, State Auditor. (Supreme Court of Utah. Nov. 16, 1899.) STATUTES-INTERPRETATION-REPEALS. 1. Repeals by implication are not favored by the law. One act is not to be allowed to defeat another, if by reasonable construction the two can be made to stand together; and, in the interpretation of laws, particular provisions relating to a former subject must govern in relation to that subject, as against general provisions in another part of the law which might otherwise be broad enough to include it. 2. Where a statute enumerates the persons and things to be affected by its provisions, there is an implied exclusion of others, and the natural inference follows that it is not intended to be general.1 3. Chapter 5, Sess. Laws 1899, being specific, temporary, and special, covering a definite special subject, and having a special, temporary object and duration, and chapter 53, Sess. Laws 1899, being a general act, having no relation to the same subject or purpose, and being continuous in its operation, the two have no repugnancy to each other, and are easily harmonized. 4. A later act, covering part or all of the provisions of a former act, does not necessarily re 1 North Point Consolidated Irrigation Co. v. Utah & S. L. Canal Co., 46 Pac. 824, 14 Utah, 163. peal such former act; the rule being that if, by fair and reasonable interpretation, acts which are seemingly contradictory may be enforced and made operative and harmonious, without obscurity or conflict, both will be upheld, and the later will not be regarded as repealing the former by construction or intendment. 5. A clause that "all laws in conflict herewith shall not be construed to prevent the carrying out of the provisions of this act" (Sess. Laws 1899, c. 5. § 9) is a declaration on the part of the legislature that the act was enacted for a special, particular, and temporary purpose, and that it should be enforced according to its terms, without regard to any other law in force. (Syllabus by the Court.) Appeal from district court, Salt Lake county; A. N. Cherry, Judge. Application for mandamus by the University of Utah against Morgan Richards, state auditor. From a judgment granting the same, the auditor appeals. Affirmed. A. C. Bishop, Atty. Gen., for appellant. Williams, Van Cott & Sutherland and Pierce, Critchlow & Barrette, for respondent. MINER, J. This is an action brought to obtain a writ of mandamus against the state auditor, requiring him to issue a warrant for $5,000, to be expended by the plaintiff, through its regents, under the provisions of chapter 5, Sess. Laws 1899; the defendant having refused, on application, to draw a warrant for such sum, on the ground that chapter 53, Sess. Laws 1899, supersedes and is repugnant to chapter 5, and that the plaintiff had not complied therewith. We are required to place a construction or interpretation on these two provisions of the statute. The legislature of this state, at its session in 1899, enacted chapter 5, p. 20, which, among other things, provides for the removal of the University of Utah, and its establishment on the site granted by congress. By the first section of the act the regents of the university are authorized and directed to expend $200,000, or so much thereof as may be necessary, to plat the grounds, procure plans, erect necessary buildings, equip and furnish the same, and do all other acts and things necessary to establish and construct said university. Section 7 of this act reads as follows: "Appropriation. There is hereby appropriated one hundred thousand dollars, or so much thereof as may be necessary, to effectuate the purposes mentioned in section 1, of this act; not to exceed fifty thousand dollars thereof may be drawn by the regents of the University of Utah at such times as they may deem proper during or after the year 1899, and not to exceed fifty thousand dollars may be drawn by the regents of the University of Utah at such times as they may deem proper during or after the year 1900; and the state treasurer and the state auditor are hereby authorized and directed to issue and pay warrants for such one hundred thousand dollars as herein specified." This act was approved and took effect on the 24th day of February, 1899. Subsequently, at the same session, the legislature 59 P.-7 enacted chapter 53, p. 76, Sess. Laws Utah 1899. The object of this act is expressed in the title (being to amend section 2070, Rev. St. 1898, in relation to state institutions drawing their biennial appropriations), and it reads as follows: "Be it enacted by the legislature of the state of Utah: Section 1. That section 2070 of the Revised Statutes of Utah, 1898, be amended to read as follows: 'Sec. 2070. Appropriations. When Available. How Drawn. That on the first day of each month, or as soon thereafter as the bills for the expenses for the previous month have been audited, the board of control of each state institution, or the proper committee thereof, duly authorized by the board for such purpose, shall make a requisition upon the state auditor for a warrant in sufficient amount to pay the bills so audited, and thereupon the state auditor shall draw his warrant against the appropriation made for such institution for the amount named in the requisition, in favor of the treasurer of the governing board of the institution, or in case of the state prison in favor of the warden thereof. To obtain such warrant the treasurer of the board or the warden must present to the state auditor a written authorization from the board.'" This act took effect on its approval, March 9, 1899. The appellant contends that this last act repeals, or is repugnant to, that part of section 7, c. 5, which provides that the regents may draw not to exceed $50,000, or such part thereof as may be necessary, during or after the year 1899, and not to exceed $50,000 during or after the year 1900, and therefore claims that so much of said sum as found necessary should be drawn under chapter 53, and that a requisition for the same should be made at the beginning of each month, sufficient to pay bills audited for the previous month. The lawmakers did not see fit to embrace in the later any express words of repeal of the former act. If such former act is repealed, it must be by implication. If the acts are repugnant, or are irreconcilably in conflict with each other, and cannot be harmonized together in order to effectuate the purpose of their enactment, then it may be said the later act may by implication repeal the former. Repeals by implication, however, are not favored by the law. One act is not to be allowed to defeat another, if by reasonable construction the two can be made to stand together. Particular provisions relating to a former subject must govern in relation to that subject, as against general provisions in another part of the law which might otherwise be broad enough to include it. Where a statute enumerates the persons and things to be affected by its provisions, there is an implied exclusion of others, and the natural in'erence follows that it is not intended to be general. North Point Consolidated Irrigation Co. v. Utah & S. L. Canal Co., 14 Utah, 163, 46 Pac. 824. So, as said in Sutherland on Statutory Construction (sections 157, 158): “It |