Preece v. Oregon Short Line R. Co., 48 Utah 551. he looked, see animals, if there were any, on or near it; that one could see east and west of the crossing for some distance. The witness also testified to the condition of the crossing, but this is best told by his son, who said that he, immediately after the accident, had made special observations respecting the physical conditions at and surrounding the crossing. The young man said that the track at the crossing was raised above the natural surface of the earth approximately three or four feet (other witnesses testified from two and one-half to three feet, perhaps a little more); that Burke Lane was a public highway of approximately four rods in width, and that the driveway or wagon track was graded so as to raise it level with the railroad grade or track; that the raising of the driveway as aforesaid caused a depression or "hole," as he called it, on either side of the crossing, which, he said, "would be maybe three or four feet from the roadbed to the bottom of the place" or depression. The witness further testified that there were cattle guards on both sides of the crossing; that the cattle guards were connected with wing fences, which led down from the cattle guards about thirty-five feet to the right of way fences, the track being fenced on both sides and on both sides of the crossing; that the wing fences, he said, were made out of "six-inch stuff, I think. * I think they were six feet. I didn't measure them, but just judged they [the pickets] were about six feet tall, about six inches wide, and about an inch thick." There was other evidence that the pickets were about five feet high, or perhaps a little higher. He also said, "I don't think they [the engineer] could (have seen the mare) if she had been behind the fence," the picket fence; that is, "if a horse would get down into that hole as I call it (the depression) it would hide itself." The pickets were fastened about four or five or six inches apart, and they were painted white or "whitewashed." Some of the other witnesses testified that the picket fence would not conceal the horse or cattle from the view of those operating a train. The young man said he first saw the mare on the morning after it was killed; that she was lying about sixty feet south of the crossing on the east side of the track, and about fifteen feet from the rails. Another Appeal from Second District. witness, who lived some distance from the crossing, testified that on the evening of the day the mare was killed he saw the mare and colt about six o'clock, or thereabouts, feeding in the lane; that "after sundown and not yet dark" he was told by two men who looked like "hoboes" or tramps that the mare had been killed at the crossing; that it was just before dark; that after he had finished his supper he went to see the dead mare at the crossing; that at the time the mare was killed, as nearly as he could get at the time, an animal could be seen "possibly between a quarter and a half mile." There was no evidence of any kind or character that the mare had actually gone onto the track, or, if she did, when she did so with respect to the time she was struck. The only evidence that she was on or near the track is that she was struck and killed by a passing train. It was shown, however, that a train like the one in question could have been stopped in a distance of from 1,000 to 1,200 feet; a distance much less than the evidence showed an animal could be seen at the crossing by those operating an approaching train. Upon substantially the foregoing evidence relating to the accident the defendant moved the court to direct the jury to return a verdict in its favor on the first cause of action. The court denied the motion and submitted the case, in so far as the claim for the mare was concerned, to the jury upon the evidence aforesaid. The defendant excepted to the ruling of the court, and now insists that the court erred in submitting the first cause of action to the jury, for the reason that the evidence is insufficient to authorize a verdict and judgment against the defendant. The defendant has cited a number of cases wherein it is held that the mere fact that an animal is found dead by the side of a railroad track which is being operated by the defendant in the action is not sufficient to authorize a finding of negligent killing against such defendant. Among other cases the following are cited: International & G. N. R. Co. v. Holley (Tex. Civ. App.), 160 S. W. 990; International & G. N. R. Co. v. Bandy (Tex. Civ. App.), 163 S. W. 341; International & G. N. R. Co. v. Leuschner (Tex. Civ. App.), 166 S. W. 416; Atchison, T. & S. F. R. Co. v. Adcock, 38 Colo. 369, Preece v. Oregon Short Line R. Co., 48 Utah 551. 88 Pac. 180; Robinson v. D. & R. G. R. R. Co., 24 Colo. 98, 49 Pac. 37; Decker v. Chicago, B. & Q. R. Co., 187 Mo. App. 207, 172 S. W. 1168. None of the foregoing cases is in point here, for the reason that in this case the plaintiff went farther than merely showing that the mare was found dead by the side of the track. Of course he proved that he found the mare dead, but he also proved that the place where she was struck was in an open country and could be seen for a long distance both ways along the track, and also from all other directions. He also proved just what the physical conditions surrounding the crossing were at the time, and that while the mare was struck after sunset, yet that she was struck before dark. He further showed that the train could have been stopped within a much less distance than the mare could have been seen by the engineer. From these facts and circumstances plaintiff contends the jury were authorized to infer that if the engineer had kept a proper lookout-that is, if he had exercised ordinary care in doing so, as he should have done he could have seen the mare in time to have avoided the collision; that if he did not look, or if he did and saw the mare and did not check the speed of the train, or stop it if necessary, he, under the circumstances, was guilty of negligence. The question is not entirely free from difficulty, nor, in view of some of the cases, is it free from doubt. In 33 Cyc. 1297, the rule applicable to public crossings is stated thus: "Where the ground of recovery relied on is a failure to maintain a proper lookout or to exercise proper care to avoid injury to animals seen on or near the track, there must be some evidence reasonably tending to show such negligence; but a finding of negligence in failing to maintain a proper lookout may be sustained where it is shown that the animal could have been seen for a sufficient distance within which to stop the train." The following cases are cited in support of the text, namely: Colorado, etc., R. Co. v. Charles, 36 Colo. 221, 84 Pac. 67, also cited by plaintiff; Kansas City, Ft. S. & G. R. Co. v. Hines, 32 Kan. 619, 5 Pac. 172; Louisville & N. R. Co. v. Jones (Ky.), 52 S. W. 938; Stading v. Chicago, etc., R. Co., 78 Neb. 566, 111 N. W. 460, also cited by plaintiff; Toledo, etc., R. Co. Appeal from Second District. v. Ingraham, 58 Ill. 120; Railroad v. Abernathey, 106 Tenn. 722, 64 S. W. 3. In addition to the foregoing plaintiff's counsel also cites San Antonio & A. P. Co. v. Yeager (Tex. Civ. App.), 43 S. W. 25, and Kelly v. Oregon S. L. & U. N. R. Co., 4 Idaho 190, 38 Pac. 404. In the first three cases cited above the evidence was that the animals were actually upon the track where they might have been seen in time to have avoided the collision. Indeed, in Toledo, etc., R. Co. v. Ingraham, the Supreme Court of Illinois, in the course of the opinion, said: "The evidence offered by the appellee (the owner of the animal) tended to and did prove facts from which the jury might properly infer that the servants of the company recklessly and willfully destroyed the property of the appellee." The case from Tennessee is apparently partly based upon the fact that the animal was on the track, and partly upon the Tennessee statute. The Yeager Case and the Kelly Case were both based upon the fact that the evidence showed that the animals were actually upon the track so that they could have and should have been seen by the engineer before they were struck by the train. In the Stading Case from Nebraska the evidence showed that a large number of cattle were on the track which could, and therefore should, have been seen by the engineer in time to have avoided the collision. Counsel for the plaintiff has not cited a single case, and I have found none, where the facts from which the negligence in question was inferred were as meager as they are in the case at bar. It is true that statements are found in some of the cases which are broad enough, perhaps to cover the case at bar, but when the facts are looked into they are all stronger against the defendant than is the case here. I entirely agree with the author of Elliott on Railroads, where, in referring to certain cases, in volume 3, section 1205, it is said that they "state the doctrine entirely too strong.' In Kansas City, L. & S. K. R. Co. v. Bolson, 36 Kan. 534, 14 Pac. 5, it is squarely held that merely to prove that an animal could have been seen near the track for a sufficient distance to have stopped the train when there is no evidence that the animal went onto the track ahead of the advancing Preece v. Oregon Short Line R. Co., 48 Utah 551. train is not sufficient to authorize a finding of negligence. The question then is: What was the duty of the engineer who operated the engine and train which struck and killed the mare in question in view of the evidence? 8 The evidence is not disputed in so far as the time of day when the accident occurred is concerned. Upon that point the evidence is undisputed that the accident occurred after sunset and before dark on or about June 21, 1908. Independently of plaintiff's evidence we take judicial notice of when the sun sets on any given day in this latitude and what system of measuring time is in general use. In this latitude on June 21st the sun sets, according to standard time, at three minutes past eight o'clock p. m. The plaintiff's testimony in that regard is therefore practically correct. We also take judicial notice of the fact that what is termed twilight follows immediately after sunset and continues until the sun has passed eighteen degrees below the horizon. We further judicially know that the sun sinks below the horizon at the rate of one degree of longitude for every four minutes of time, and that a degree of longitude in this latitude is slightly in excess of fifty-two miles. If the accident occurred, therefore, as plaintiff testified, namely, at twenty-four minutes past eight o'clock in the evening, the sun had passed below the horizon a distance of approximately 275 miles, and if the accident occurred, as defendant contends, namely, at eight-thirty p. m., the sun had passed below the horizon a distance of about 341 miles. If the evening was clear, therefore, as the evidence shows it was, it must have been twilight when the train was approaching the crossing, and no doubt the crossing could have been seen by the engineer in approaching it for at least some considerable distance. The evidence is likewise undisputed respecting the physical conditions surrounding the crossing. That there were wing fences five or six feet in height leading down from the track to the right of way fence there is no dispute; that the right of way was about fifty feet in width on either side of the center of the track is also shown by the evidence. It is also undisputed that the mare and colt were seen feeding in the lane some two hours before the accident, and that no one observed |