2. APPEAL AND ERROR (§ 798*)-DISMISSAL-Ison of facts and circumstances not within FAILURE TO FILE BRIEFS-NOTICE. the control of the defaulting party. Here the showing made is that counsel was engaged in the trial of other cases in the district court. Such a showing might excuse the failure to file briefs, but it certainly does not justify the failure to apply for an extension of time within which to file the same. It

Appeal from District Court, Socorro Coun- ney had "so much to do" is not a sufficient ey; before Justice M. C. Mechem.

rule provides that, "when the appellant or stitution, may be required to provide and mainWhile a railway company, under the Conplaintiff in error has failed to file and serve tain "adequate depots, stock pens, station buildhis brief as required by these rules, the ap-ings, agents and facilities for the accommodapellee or defendant in error may have the cause dismissed, or may submit it."

[Ed. Note. For other cases, see Corporations, Cent. Dig. § 1576; Dec. Dig. § 394;* Railroads, Cent. Dig. §§ 12-19; Dec. Dig. § 9.*]

sengers and for receiving and delivering freight | adequate station facilities for the accommoand express, the court cannot determine such dation of passengers and for receiving and questions and will not enforce the order. delivering freight and express at its station of Barranca, a station on its line of railway within the state of New Mexico, and that said company is failing to maintain an agent at said station through whom the patrons of said railway may transact business with said railway company.

Review from Corporation Commission, before Commissioners Williams, Groves, and Owens.

W. M. Woody and others filed an informal complaint with the Corporation Commission against the Denver & Rio Grande Railroad Company, and the cause was removed to the Supreme Court by the Commission. Remanded to the Corporation Commission, with directions.

On July 15, 1912, the State Corporation Commission, upon an informal complaint filed with the Commission by W. M. Woody, and other residents of Taos county, N. M., made an order for a hearing, which order was as follows:

"Informal complaint having been presented to this Commission by and on behalf of parties residing at and in the vicinity of Barranca, a station on the line of railway operated by the said the Denver & Rio Grande Railroad Company within the state of New Mexico, to the effect, that said company had failed to maintain at said station adequate facilities for the accommodation of passengers and for receiving and delivering freight and express, and that said company was not maintaining an agent at said station, to the great detriment of the complainants; the Commission having made a personal examination into the matter, and it appearing to this Commission that conditions are such as to require a more thorough investigation:

"It is hereby ordered that a hearing on the matter set out in said complaint be held at the office of the State Corporation Commission at Santa Fé, N. M., commencing at the hour of 10 o'clock a. m., on the 30th day of July, 1912, at which time and place the said complainants, will be heard in support of the allegations of their complaint, and the said railway company will be heard in

rebuttal thereto.

"The parties in interest will be notified accordingly.

"Done at the office of the State Corporation Commission at Santa Fé, N. M., on the 15th day of July, 1912."

"A copy of the order of the State Corporation Commission for this hearing is hereto

attached."

On the day fixed, the cause was heard, and thereafter the Commission made the following order:

"It is therefore ordered by the Commission that the Denver & Rio Grande Railroad Company install an agent who shall be a telegraph operator at its station of Barranca, whose duties shall be to care for the freight received and forwarded at this station, and to furnish information to the traveling public relative to, the movement of trains and to provide suitable quarters and comforts for passengers waiting on trains at this station; and to take necessary train orders concerning the movements of trains, both passenger and freight, for the district between Embudo and Servilleta, the two points next adjacent in either direction at which telegraph operators are now maintained by the defendant company; and to receive and forward such telegrams as may be offered by the general public.

"The Commission further orders that defendant company shall provide the necessary wire connections for this service and to provide suitable accommodations within the depot station for the comfort and protection of passengers, and the proper handling of freight."

The railroad company failing to comply with the order within the time limited by the Constitution, the cause was removed to this court by the Commission.

F. W. Clancy, Atty. Gen., for complain-
Renehan & Wright, of Santa Fé, and
Clark and R. G. Lucas, both of Den-
Colo., for defendant.

ants.
E. N.
ver,

ROBERTS, C. J. (after stating the facts as above), In the case of Seward et al. v. Denver & Rio Grande R. R. Co., 131 Pac. 980, this court, at the present term, in an opinion

The following notice of hearing was serv- not yet officially published, settled many of ed on the railroad company, viz.:

"You are hereby notified that there will be a public hearing before the State Corporation Commission on the 30th day of July, 1912, at the hour of 10 o'clock a. m., at the office of said Commission, in the city of Santa Fé, N. M., at which time testimony will be heard in matters relative to informal complaint filed by W. M. Woody et al., to the effect that the said the Denver & Rio Grande Railroad Company has failed to maintain

the questions presented by the record. l'oints discussed by counsel in this case, not arising in the former case, necessary to be determined now, may be briefly stated as follows: (1) The order now under consideration required the defendant to maintain a telegraph operator, whose duty it should be to receive and forward such telegrams as might be offered by the general public, thereby compelling the defendant to engage in the commercial telegraph business. The evidence

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

"2. A railway company is required to furnish all necessary equipment and facilities for the discharge of its duties as a common garrier; but when such are not reasonable and necessary for such purpose, it is not, independent of its duties as a common carrier, to be required to furnish them, that the public may, commercially, derive convenience therefrom."

To the same effect is the case of Railway Co. v. State, 24 Okl. 370, 103 Pac. 617, 24 L. R. A. (N. S.) 393.

failed to show that the defendant company | sages for commercial purposes, independent was engaged in the commercial telegraph of its business as such common carrier." business, and the question presented is as to whether or not the Commission had the power to order the company to engage therein. (2) The notice of hearing served upon the railroad company informed the defendant company that the Commission was proposing to investigate the question as to whether or not the said company maintained adequate facilities at the station of Barranca for the accommodation of passengers, and for receiving and delivering freight and express, and the further question as to whether said company should be required to maintain an agent at said station through whom the patrons of the road could transact business with the company. It will be observed that no mention was made in the notice or order for the hearing, of the fact that the Commission would investigate the question as to whether or not an agent and telegraph facilities were necessary and required for the safety of the traveling public and the employés of the road, in the operation of defendant's trains. The question presented is as to the power of the Commission to make an order broader in its scope than the notice served upon the company. In other words, has the company to be affected the right to be advised in advance as to the extent of the relief asked and the basis upon which a proposed order is to be made? The question of safety being eliminated, (3) is the order made by the Commission reasonable and law-what the expense of maintaining such an opful, and should it be enforced by the court, in the absence of any evidence showing the cost of the facilities required to be furnished by the Commission?

This order imposed upon the defendant an obligation outside of its charter duties. Commercial telegrams are sent and received for purely private purposes. The railroad has no interest therein, and is in no manner benefited thereby, and the railroad company cannot be required to install and maintain telegraph facilities at a station unless such facilities are reasonably necessary on account of the safety and expedition of the train service, either freight or passenger, or of the convenience to be afforded to the public by the railway company in the conduct of its freight or passenger service. The order cannot be sustained upon the assumption that an arrangement exists between the railroad company and a commercial telegraph company by which such commercial telegraph company will pay practically all of the salary of the operator. There is no showing in the record as to

erator would be, or that there is any such arrangement between the railroad and telegraph companies. Were there such an arrangement, nevertheless, this order would

Discussing the questions in the order pre- be unenforceable. The telegraph company is sented:

[1] 1. There is no evidence in the record tending to show that the railroad company is engaged in the commercial telegraph business. While it is true that the railway company may be required to provide and maintain "adequate depots, stock pens, station buildings, agents and facilities for the accommodation of passengers, and for receiving and delivering freight and express," and might, upon a proper showing, be required to maintain a telegraph station and agent, for the accommodation of passengers and for receiving and delivering freight and express, it could not, independent of its duties as a common carrier, be required to furnish telegraph facilities so that the public might commercially derive convenience therefrom. This same question was before the Supreme Court of Oklahoma in the case of Railroad Co. v. State, 23 Okl. 231, 100 Pac. 16, 18 Ann. Cas. 102. The syllabus of the case states the question presented and decided, tersely as follows:

"1. A railway company engaged as a common carrier in the transportation business is not required to install and maintain tele

not a party to this case; it has never been given the hearing provided by section 8 of article 11 of the Constitution; it has never had its day in court. A party is entitled to some notice before he can be deprived of his liberty or property.

[2] 2. In discussing the second proposition this court held in the case of Seward v. D. & R. G. R. R. Co., supra, that the company to be affected by a proposed order was entitled to notice as to the order which the Commission was proposing to make, so that it should have the opportunity to present before the Commission evidence to show that the proposed order was unreasonable or unlawful; that it was the duty of both parties to present before the Commission all the evidence in the case, so that when the cause is removed to the Supreme Court, the court can determine from the evidence the question of the reasonableness and justness of the order. It must be manifest that the railroad company is entitled, in advance, to know with reasonable certainty the order which the Commission is proposing to make, and the reasons therefor. The order in the present case, served upon the defend

HANNA and PARKER, JJ., concur.

(42 Utah, 431)

REID v. SAN PEDRO, L. A. & S. L. R. CO.
(Supreme Court of Utah. April 24, 1913.)
RAILROADS (§ 411*)-INJURIES TO ANIMALS ON
TRACK-LIABILITY-FAILURE TO FENCE.

was proposing to require certain facilities | evidence adduced before the Commission, "for the accommodation of passengers and and presented to this court by the record. for receiving and delivering freight and ex- It is the duty of the Commission to develop press," and also to require said company to such evidence as will show that the order maintain an agent at the station of Barran-made by it is reasonable and lawful. ca, through whom the patrons of said rail- For the reasons stated the court must reway company could transact business with fuse to enforce the order made by the Comthe company. Upon the trial of the case, mission, and the cause is remanded to the two of the witnesses for the complainants Corporation Commission for further proceedincidentally stated that Barranca was locat-ings, should it so elect, in accordance with ed at the summit of a 4 per cent. grade on this opinion. the railway, and that it was a dangerous place in the operation of trains. Admitting, without deciding, that the Commission had the power to require a telegraph agent to be maintained, where it was shown to be necessary for the safety of passengers and employés in the operation of trains, still we think that the railroad company was entitled to notice in advance that the Commission was proposing to base its order upon such fact. Here the railway company was only advised that such facilities were to be required for the accommodation of passengers, and naturally would only prepare to combat such contention. Having no intimation or knowledge that such facilities were to be demanded for the safety of the train service, naturally it would not prepare or have witnesses to prove that such facilities were not required for such purpose. If the Commission had the power to make an order for such facilities, because of their requirement for safety in the operation of trains, the question of expense would not be involved. On the other hand, where such facilities are required or demanded for the accommodation of passengers and the patrons of the road, the question of expense necessarily enters into the question. In this case the railroad company had no notice prior to the hearing, or indeed no suggestion was made upon the hearing, to the effect that the Commission was proposing to make an order based upon the necessity of such facilities from the standpoint of safety in the operation of trains. It is apparent, however, from the findings of fact made by the Commission that it based the order made, in part, at least, upon the necessity of such facilities for the safety of passengers and employés in the operation of the road.

A railroad company was not liable for injuries to stock caused by its failure to construct a fence between its depot grounds and adjoining private land, where the fence would have been necessarily have interfered with free access to but 131⁄2 feet from the freighthouse, and would the freighthouse and with the loading and unloading of freight between the fence and the freighthouse, under Comp. Laws 1907, § 456x, fence on each side of its railroad where it passrequiring railroad companies to maintain a es over land owned and improved by private owners, and connect them at public crossings with cattle guards, especially where such fence would have been useless, because of the absence of any fence between the private lands and a street which intersected the depot grounds, since notwithstanding the statute the company is not required to fence such depot grounds as the necessities or convenience of the public and the proper conduct of the business of the road at such places require to be left open and unobstructed, and public convenience at such places requires unobstructed access to the buildings

and tracks.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 1409-1450; Dec. Dig. § 411.*]

Appeal from District Court, Salt Lake County; Geo. G. Armstrong, Judge.

Action by Janet Reid against the San Pedro, Los Angeles & Salt Lake Railroad Company. Judgment for plaintiff, and defendant

appeals. Reversed and remanded.

See, also, 39 Utah, 617, 118 Pac. 1009.

Dana T. Smith, of Salt Lake City, for appellant. Allen T. Sanford, of Salt Lake City, for respondent.

STRAUP, J. This is an action to recover damages for the killing of two horses and a cow by the defendant in the operation of its railroad. The case was tried to the court and a jury, and resulted in a judgment in favor of the plaintiff. The defendant appeals.

[3] 3. The question of safety in the operation of trains therefore being eliminated from consideration, because not included in the notice to the railroad company, the question arises as to whether or not the order inade is reasonable and lawful and one which this court should enforce. The evidence in the case shows that the passenger and freight receipts for the year 1911 at this station amounted to a total sum of $5,279.86, but there is no evidence whatever to show the cost to the company of furnishing the facilities ordered. This court can determine the reasonableness and lawfulness of an order made by the Commission only upon the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The action is based on a failure to fence at the place where the stock entered the defendant's right of way. Our statute (Comp. Laws 1907, § 456x) requires every railroad company operating a railroad by steam power to erect and maintain "a fence on each side of its railroad where the same passes through

lands owned and improved by private own- | field, which, as is conceded by the plaintiff, ers, and connect the same, at all public road "was considerable." It is somewhat difficult crossings, with cattle guards." The respec- to intelligently describe the depot grounds tive contentions are these: The plaintiff, and premises without reference to the folthat the defendant was required to fence at lowing drawing, which is a miniature of an the place where the stock entered the right exhibit in evidence: of way but had not done so; the defendant, that the place was depot grounds, and hence it was not required to fence. The court let the case to the jury, charging them: No. 6: "You are also instructed that it is conceded that Garfield station is a station on defendant's railroad where such railroad receives and discharges freight and passengers, and where said road maintains a station for the use of the public and said railroad, and the grounds thereabout. If you believe from the evidence that no fence was maintained on the south side of the freighthouse of the defendant company, and that no such fence could be erected or maintained without obstructing the access by the public, and that such was reasonably necessary, convenient, and actually used for the purposes of station grounds, then the said defendant was not bound to construct or maintain a fence at this point to the detriment of the public, and if the jury believe from the evidence that said animals came upon said railroad station grounds in consequence of the failure of the defendant to erect and construct such fence, and that in consequence thereof said animals were killed, then the defendant is not liable." No. 7: "If, however, you find that the place where the animals entered upon such station grounds was not within the limits of the grounds which were reasonably necessary for such station uses in defendant's dealings with the public and for the transaction of the company's business as herein stated, then the law as to fencing set forth in the next preceding instruction would apply, and the defendant would be required to fence at said point where said animals entered upon its station grounds." The defendant, contending that there was no dispute as to the facts upon which the court in instruction No. 6 directed the jury to find for the defendant, and that the facts assumed in instruction No. 7 were on the record expressly admitted, requested the court to direct a verdict in its favor. This the court refused.

The facts which determine the rights of the parties are substantially without dispute. The injury occurred at Garfield station, which is about one-half mile north of the town of Garfield in Salt Lake county. There the defendant's railroad track runs east and west. When the road was constructed the right of way at the place in question was fenced on both sides. About four years prior to the injury Garfield station was established by the defendant. A passenger depot, a freight depot, a coal bin, and a warehouse and water tank were erected at this place on the defendant's right of way to handle

25 TH

LUMBER YARD

B

LINCOLN

AVE.

Line a-b on the drawing is a wire fence marking the north boundary of defendant's right of way. Line c-k is the south boundary. B is the passenger depot. The dotted space surrounding it and to the east and west indicates walks. C is the freight depot. The white space surrounding it indicates a platform. D is the coal bin; E, a warehouse; A, a water tank. The lines north of the passenger and freight depots and the walks indicate railroad tracks. The characters across the tracks at both ends indicate cattle guards; the lines leading from them to the