Whitmore v. Rio Grande W. Ry. Co (NS) ture directly or through the authorized action of the municipality. Elliott, Roads & S. § 739. It is generally conceded that country roads cannot be used for such purpose, even by legislative consent, without compensation to the adjoining landowners. Id. § 455. Any legislative permission to use public roads for such purposes would be subject to the rights of the adjoining landowners in the premises. The right could not be exercised under the permission, unless the owners should have given their voluntary consent, or their forced legal consent had been obtained under expropriation proceedings. Tilton v. Railroad Co., 35 La. Ann. 1074. A landowner had the right to resist the unauthorized diversion of a country road over his property to any other than its usual and legitimate use. Elliott, Roads & S. § 442; Dudley v. Tilton, 14 La. Ann. 286; Tilton v. Railroad Co., 35 La. Ann. 1063. For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the defendant, F. F. Myles, is not authorized, under the ordinance or resolution adopted at the meeting of the police jury of November, 1900, to construct, own, and operate a line of railway as therein authorized, and he is hereby enjoined from constructing or operating said line of railway under said ordinance or resolution; the injunction to that effect which issued herein on plaintiff's prayer being hereby reinstated. MONROE, J. I concur in the decree. WHITMORE v. RIO GRANDE WESTERN RY. Co. (Supreme Court of Utah, Dec. 17, 1901.) [66 Pac. Rep. 1066.] Killing Stock on Track-Evidence of Other Killings.* In an action against a railroad for the negligent killing of certain cattle on the right of way on specified dates, the admission of evidence that large numbers of cattle were killed on the right of way during various years, but at no definite date, and that the section foreman refused to exhibit the book in which he kept a record of the marks and brands of cattle killed along the road, was reversible error. Direction of Verdict. Where plaintiff's evidence tends to sustain his right to recover, the trial court will not take the case from the jury. Appeal from district court, Seventh district; Jacob Johnson, Judge. Action by George C. Whitmore against the Rio Grande Western Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed. *See Rouse v. Detroit Electric Ry. (Mich.), 22 Am. & Eng. R. Cas., N. S., 650, and foot-note, 651. R Cas Whitmore v. Rio Grande W. Ry. Co Bennett, Howat, Sutherland & Van Cott, for appellant. BASKIN, J. This is an action to recover damages for the alleged negligent killing, by defendant, on its railroad, of a number of cattle which belonged to plaintiff. The complaint contains 13 separate counts, in each of which the negligent killing by defendant, at a particular date, of a cow which belonged to plaintiff, is alleged. The answer denies the allegations of each count. Judgment was rendered in favor of plaintiff on six of the causes of action stated in said counts. At the trial, Wm. McGuire, a witness, was asked by plaintiff's attorney: "Q. Did you see during those years-1894, 1895, 1896, and 1897-other cattle there killed of Whitmore's, aside from the ones you have testified to?" Defendant's counsel objected to this question, on the ground of its irrelevancy, and as not confining the witness to any particular time. The trial court overruled the objection, and the witness, in answer to the question, stated that, "There has been all the way from 100 to 175 killed each year, so far as I could tell, and some I would not find at all." Defendant's attorney moved to strike out this answer as not material or relevant to the issue, and that it was not competent to prove the several counts of the complaint by testimony so general as this. Over like objections of the defendant, John Gentry, a witness for plaintiff, was allowed to testify that during each of the years 1894. 1895, 1896, and 1897, he saw, along the railroad track of the defendant in Carbon county, from 175 to 200 cattle which had been killed. The plaintiff, over like objections, was also permitted to show that the defendant had failed to post and file with the county clerk the notice required by section 68 of the Revised Statutes. After the witness McGuire testified that, "I went to see the section foreman, and told him I wanted to look at his books-the books in which they kept the marks and brands of cattle killed along the road-and I told him who I represented, "-the record shows that the following occurred in the witness' further examination: "Q. By Plaintiff's Attorney: What did he say? (Objected to as incompetent and immaterial, not being a competent declaration of the section foreman to this witness, and not being made by the section foreman in the discharge of any duty imposed upon him, and simply hearsay. Objection overruled. Exception.) Q. Did you demand of him the information in relation to this animal? A. Yes. Q. And informed him of the killing, and did he refuse to tell you anything about it? (Objected to as incompetent and immaterial, for the reasons assigned when the question was first asked. Objection overruled. Exception.) A. Yes. Q. State, now, what reasons he gave why he would not? (Objected to as incompetent and immaterial; simply hearsay. Objection overruled. Exception.) A. Said he was notified by his employers not to show his books at all. Q. State if he said anything upon that sub Arkansas & L. Ry. Co. v. Sanders (NS) ject; if he said anything, or gave as a part of the reason any result that would come to him? (Same objection. Objection overruled. Exception.) A. Yes, sir; he said he would lose his job if he told anything." It also appears from the record that in the examination of the witness Wilson, who had formerly been foreman on the section of the road where it was alleged that cattle were killed, the following occurred: "Q. Now, I want to inquire if at any time you received any instructions from the company in relation to not giving any information in relation to the killing of stock? (Objected to as immaterial, not having any connection with any of the animals, or not shown to have any connection with any of the animals, for which the complaint seeks to recover, and it in no way affects the liability of the defendant. Objection overruled. Exception.) A. Yes, sir. Q. State what it was? A. That these books were furnished for the company's use, and not for information for outside parties, and that the section foreman would be careful in giving any information to any parties in regard to stock being killed on the right of way: how they were killed; what kind of stock, or anything about it. Then, also, the roadmaster told me verbally; that was the order he gave me. Told me to give no information to any party in regard to stock having been killed on the right of way that could be avoided. Q. When was that instruction given? (Defendant moves to strike out the answer of the witness because it is incompetent for the purpose of affecting defendant's liability, because the testimony has no bearing upon any of the issues in the case, and is immaterial for the same reason. Objection overruled, and motion denied. Exception.)" The issue in the case was the negligent killing of the cows respectively described in the several counts of the complaint. The foregoing testimony, admitted over the objection of the defendant, did not tend to prove that issue. The only bearing which it could possibly have in the case was to prejudice the jury against the defendant. It was error to admit this testimony, and for that reason the judgment should be reversed. The plaintiff's evidence tended to sustain his right to recover, and where such is the case, as a general rule, the trial court will not take the case from the jury. The motion for a nonsuit was not improperly denied. It is ordered that the judgment be reversed, at respondent's costs, and the case remanded for a new trial. MINER, C. J., concurs in the judgment of reversal. BARTCH, J., concurs. ARKANSAS & L. Ry. Co. v. SANDErs. (Supreme Court of Arkansas, Nov. 9, 1901.) [65 S. W. Rep. 428.] Injury to Stock-Duty to Keep Right of Way Free from Obstructions. In an action to recover for plaintiff's horse, killed on defendant's R Cas Arkansas & L. Ry. Co. v. Sanders track by its engine, held error to charge that the defendant was under obligation to keep its right of way cleared of obstacles, SO that animals could pass over and across its track freely. Same-Instructions-Not Warranted by Evidence. Where the evidence is undisputed that defendant's train could not be stopped between the point where plaintiff's horse could first be seen from the engine and the point where the horse was struck, or until the train had passed over 80 yards beyond such point, a charge that if the persons in charge of the train could see that the horse, in his fright, would attempt to cross the track, and they failed to stop the train to prevent the injury, if it could be done, the jury will find for the plaintiff, is erroneous. Same-All Employees Not Required to Keep Lookout.* An instruction which requires all the employees of the company to keep the lookout required by statute, and makes the company liable for the neglect of any of them to do so, is erroneous. Appeal from circuit court, Howard county; Will P. Feazel, Judge. Action by R. J. Sanders against the Arkansas & Louisiana Railway Company. From a judgment of the circuit court in favor of plaintiff for the same amount recovered by him in justice's court, defendant appeals. Reversed. Dodge & Johnson and W. C. Rodgers, for appellant. BUNN, C. J. This is a suit originally before W. P. Craig, one of the justices of the peace of Howard county, by R. J. Sanders, the appellee, against the appellant company, for $60 damages for wounding and crippling a horse so as to necessitate its killing. Trial and judgment for the sum claimed by plaintiff, from which judgment the defendant appealed to the circuit court of said county. In the circuit court on the 15th day of February, 1900, the cause was tried by a jury under the instructions of the court, and the verdict. was for the same amount as in justice's court, in favor of the plaintiff, and the defendant appealed to this court. It appears from the evidence that on November 4, 1899, the plaintiff's horse was struck by defendant's train at a point on the track where the railroad cuts through the point of a small hill or mound about 20 feet deep; and about 166 yards southeast, or towards Hope, from this point, the horse was struck. There was nothing to obstruct the view of the engineer and fireman, after turning the curve, to where the horse was struck, a distance of 156 yards. From the horse's track, he was standing on the railroad right of way, on the north side of the railroad, and about 30 feet from the track, and 20 feet from a wire and plank fence to the northward, and thence the horse. seemed to have gone "angling," as the witness expressed it, towards the railroad, and reached the track about 75 feet from *As to the duty of trainmen to keep a lookout for stock, see Louisville & N. R. Co. v. Bowen (Ky.), 9 Am. & Eng. R. Cas., N. S., 276, and foot-note; Georgia R. & B. Co. v. Churchill (Ga.), 21 Am. & Eng. R. Cas., N. S., 17, and foot-note; 1 Rap. & Mack's Dig. 118 et seq. Arkansas & L. Ry. Co. v. Sanders (NS) its starting point, and was struck by the engine. It seemed to be running before it reached the track, and in the direction the train was running. This is the testimony of the plaintiff, who was not present and did not see the occurrence. He further testified that he was about a quarter of a mile away, and that the defendant did not ring a bell or sound a whistle on approaching the horse; that it was worth $60 to him; that he had assessed it for taxation at $20; and that it was over 12 years old. The evidence on the part of the plaintiff also showed that there was no obstruction on the north side of the track the left side as the train was going to prevent the train men seeing the horse standing where it was said and appeared to have been when the train came through the cut. None of the plaintiff's witnesses saw the accident, and all testified from an examination of the locality. On the part of the defendant evidence shows that the train was made up of the engine and tender and four freight and two passenger cars, and carried passengers, freight and express, and was running on schedule time, at the rate of 25 miles per hour, and could not have been stopped within 250 yards at that place in the road, although on a perfectly level track it could have been stopped within 150 yards. The fireman testified as follows: "We left Nashville that afternoon on time, and were running about 25 miles an hour; and when about a mile from Nashville, as we rounded a curve where the road goes round a small hill, I saw a horse to the left about 35 or 40 feet from the track. He began running in an angling direction towards the track just as I saw him. I was and had been keeping a constant lookout for persons and property on the track, and saw this horse as soon as he was visible from my position on the engine, which was on the left side of the cab. The road makes a curve around this elevation, which is about 20 feet high, and it obstructs the view on the left side. Just as soon as I saw the horse I signaled the engineer to hold up, stating, 'Here is a horse over here.' He at once applied the air, shut off the steam, and proceeded to bring the train to a stop. But before the train stopped the horse attempted to cross the track right in front of the engine, and was struck, three of his legs being broken. He was nearly halfway across when hit, and the force of the train carried him two or three rail lengths, and dumped him over on the side from which he attempted to cross. It was about 100 yards from where the horse was first seen to the place of collision. He did not get upon the track until the train was right on him. We had very little time in which to do anything. We did not ring the bell or sound the whistle. My experience shows that it is more dangerous to frighten stock which is not upon the track by these methods than to omit such signals. The horse was on the right of way when I saw him. There is a plank and wire fence on north side of track, about 50 feet distant." The engineer's testimony is to the same effect, and, further, that |