ence to it, the collision would not have occurred, that still his failure to move in obedience to the signal was not a proximate cause of the accident." According to this argument, if Gilbourne, instead of taking a position on the pilot beam of his engine on the occasion in question, had lain down on the track immediately in front of it and gone to sleep, and was in that situation when he was injured, he still would be entitled to recover, provided he had taken the precaution, before taking his nap, to equip his engine with the customary and necessary danger signals. The mere statement of such a proposition is sufficient to refute and overturn any argument that can be made in favor of it.

In the prevailing opinion we remark that the respondent was holding his engine on the main track along which he knew a train might pass at any moment. In the petition this is characterized as a "misstatement of fact," and we are taken to task for making it. Counsel, however, in correcting this "misstatement," say: "He was standing on the main line, but the main line is a track on which trains run according to schedule," and that "nothing in the record shows that any train was due about the time of the accident." Therefore respondent, if we correctly sense and grasp the logic of counsel's argument, having equipped his engine with the necessary danger signals, could, with impunity, and without assuming the risks, disregard signals that were given for his safety and remain upon the pilot beam of his engine, or, for that matter, as herein suggested, go to sleep on the track in front of the engine, oblivious to all that was going on around him in this busy railroad yard, until some train that was being run according to schedule should pass along the track. We cannot assent to any rule or doctrine that would lead to such an absurdity. Counsel further say, by way of argument, that "this is not like the case of a man crossing a railroad track where trains may be expected at any moment. One crossing a railroad track without looking may fairly be said to be in a situation where in the light of attending circumstances he ought to forsee that he is liable to be run over and injured." Nor may a man who is

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operating a switch engine in a busy railroad yard stop his engine on the main track along which trains and other switch engines frequently pass, and close his eyes and become indifferent to his surroundings. In such case, it is as much his duty to use ordinary care to protect himself and the equipment under his control from injury by collision as it is the duty of the pedestrian or teamster who is crossing a railroad track to use due care to avoid collision. In the case of the engineer, ordinary care means something more than displaying danger signals. Notwithstanding he may have done all that common prudence, ordinary care, and the rules under which he is operating the engine require to protect the engine, he is still required to continue to exercise ordinary care for his own safety. What is ordinary care in such cases is generally a question of fact for the jury to determine. The court in this case charged the jury that if they believed that the "red light burning on the tender end of the engine. . . was the usual and customary manner of warning other trains approaching on the same track, or was all the warning that ordinary care required, and that it was sufficient to prevent other trains or cars being run against the plaintiff's engine, if persons operated them with ordinary care, then the plaintiff fully met the requirements of ordinary care on his part in this respect." Up to this point the instruction refers to certain specific precautions that ordinary care required respondent to take, namely, the giving of customary warnings and signals to other train crews operating in the yard, of the presence of his engine on the track at the point where the collision occurred. Respondent, notwithstanding his engine may have been equipped with the necessary and customary danger signals at the time he stopped and was holding it on the track where the accident occurred, was nevertheless required to use his senses of sight and hearing, and to otherwise exercise ordinary care for his own safety. And this duty continued as long as he remained with and in charge of the engine. After giving that part of instruction 12a, above quoted, the court invaded the province of the jury, and in

effect instructed them that neither respondent's act in leaving the cab and taking a position on the pilot of his engine, nor his failure to observe and obey the signals given by Love, was negligence. Whether these acts and omissions. constituted negligence were questions for the jury to determine, and the court clearly committed prejudicial error in withdrawing them from the consideration of the jury.

The petition for a rehearing is denied. We have made a few formal changes in the prevailing opinion, and the case will be ruled and decided by the opinion as modified and rewritten, and the opinion as changed and modified will be published as the opinion of the court. The opinion as first written will remain on file, but will not appear in the published reports.

FRICK, C. J., concurs. STRAUP, J., thinks a rehear ing ought to be had.

CAMPBELL et al. v. DURAND.

No. 2171. Decided April 11, 1911 (115 Pac. 986). 1. JUSTICES OF THE PEACE-APPEAL TO DISTRICT COURT-DISMISSAL OF APPEAL-EFFECT. Under the statute providing that, when an appeal from a justice court to the district court is dismissed, the judgment appealed from should have the same force as if no appeal had been taken, a mere dismissal of an appeal does not adjudicate the validity of the judgment appealed from, and any order made by the district court on a mere dismissal of any greater effect than that declared by statute is without force. (Page 123.)

2. PROHIBITION-NATURE OF REMEDY. As a general rule, prohibition will not issue unless it clearly appears that the inferior tribunal or board is about to proceed in some matter over which it possesses no jurisdiction, or that it by some acts or declarations indicates an intention to pursue such a course. (Page 124.)

3. PROHIBITION-ADEQUACY OF OTHER REMEDY. Prohibition will not, as a general rule, issue where there is available to the applicant

another plain, speedy, or adequate remedy in the ordinary course of law, either by appeal, writ of error, writ of review, certiorari, injunction, or other proceeding appropriate to the relief. (Page 124.)

4. PROHIBITION-FUNCTIONS-PREVENTION OF USURPING JURISDICTION. Prohibition is a process by which a superior court prevents an inferior court or tribunal from usurping or exercising a jurisdiction with which it has not been invested by law and to arrest it from exercising a want or an excess of a legal jurisdiction, and not to prevent or correct an erroneous exercise of jurisdiction.1 (Page 125.)

5. JUSTICES OF THE PEACE-JURISDICTION-NONRESIDENCE OF DEFENDANT. Where defendant in an action in justice's court filed an affidavit averring that he was not a resident of the precinct in which the action was commenced, but resided in another precinct, and that he had not contracted to pay the obligation sued on in the precinct where the action was commenced, and the affidavit was not contradicted, the justice was ousted of jurisdiction except to transfer the case and transmit the papers to another justice, and a judgment rendered by the Justice without transferring the case was void for want of jurisdiction. (Page 125.)

6. PROHIBITION OTHER REMEDY. Where a justice's court retained jurisdiction of the action notwithstanding the uncontradicted affidavit of defendant, averring his nonresidence of the precinct. in which the action was commenced and that he had not contracted to pay the obligation sued on in the precinct where the action was commenced, and rendered judgment for plaintiff, prohibition, which is but a preventive and not a corrective remedy, did not lie, but defendant's remedy was by appeal or certiorari or injunction. (Page 126.)

7. PROHIBITION-RESTRAINING EXECUTION ON VOID JUDGMENT. Prohibition does not lie to arrest threatened acts of a justice's court to enforce by execution or otherwise a void judgment rendered by it. (Page 127.)

8. PROHIBITION-RESTRAINING EXECUTION. Prohibition lies to restrain the threatened acts of one who is not vested or empowered by law to issue executions or of one, though empowered by law to issue executions, from issuing an execution or otherwise

1

1 State v. Morse, 27 Utah, 336, 75 Pac. 739; State v. Justice Court, 36 Utah, 93, 104 Pac. 760.

* State v. Gallagher, 36 Utah, 68, 104 Pac. 750.

Ducheneau v. Ireland, 5 Utah, 108, 13 Pac. 87; People v. Hills, 5 Utah, 410, 16 Pac. 405; Mining Co. v. McMaster, 19 Utah, 177, 56 Pac. 977.

enforcing a judgment which, on appeal or other proceeding, has been stayed, for such acts amount to a clear case of usurpation of jurisdiction or an encroachment on another court. (Page 128.)

9. PROHIBITION-RESTRAINING ENFORCEMENT OF VOID JUDGMENT— ADEQUACY OF OTHER REMEDY. The ordinary remedy to restrain the enforcement of a void judgment, where there is no appeal, writ of error, certiorari, writ of review, application to the court rendering the judgment, or any other speedy and adequate remedy at law, is by injunction, and not by prohibition. (Page 128.)

10. PROHIBITION RESTRAINING ENFORCEMENT OF VOID JUDGMENT ADEQUACY OF OTHER REMEDY. Prohibition will not lie to restrain the enforcement of a void judgment rendered by a justice's court ousted from jurisdiction by the uncontradicted affidavit of defendant, averring his nonresidence of the precinct in which the action was commenced, and alleging that he had not contracted to pay the obligation sued on in the precinct in which the action was commenced, because of adequacy of other remedies. (Page 129.)

11. APPEAL AND ERROR-HARMLESS ERROR-ERRONEOUS ISSUE OF WRIT OF PROHIBITION. The error in issuing prohibition against a justice's court to restrain the enforcement by execution or otherwise of a void judgment rendered by it is not prejudicial where no costs are taxed or judgment rendered against the court except to restrain the enforcement of the judgment. (Page 129.)

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Application for Writ of Prohibition by James Campbell and others against C. F. Durand.

Judgment for plaintiffs. Defendant appeals.

AFFIRMED.

E. A. Walton for appellant.

Young & Moyle for respondents.

STRAUP, J.

This is an appeal from a judgment of the district court granting a permanent writ of prohibition. In the petition