The second case was an appeal from the district court of the fourth district. The facts were as in the preceding case. Messrs. Lessinger and Beckwith, for the appellant. It was ordered that both cases be dismissed in accordance with rules three and four. B. S. BONESTEEL, RESPONDENT, v. WILLIAM M. FAIRCHILD AND OTHERS, APPELLANTS. APPEAL.-DISMISSAL.-FAILURE TO FILE ABSTRACT.-Under rule 8 of the supreme court, where the appellant fails to file an abstract of the transcript as required by the rules of the supreme court, the appeal will be dismissed. APPEAL from a judgment of the district court of the third district, Hon. Charles S. Zane, judge. The record showed that no abstract had ever been filed. Messrs. Harris and Riley, for the appellant. Messrs. Jones and Schroeder, for the respondent. It was ordered by the court that the appeal be dismissed. A. E. EMERICK, RESPONDENT, v. OGDEN CITY, APPELLANT. APPEAL.-DISMISSAL.-FAILURE TO FILE BRIEF.- Under rule 10 of the supreme court, where the appellant fails to file his brief in accordance with the rule, the appeal will be dismissed. APPEAL from the district court of the fourth district, Hon. James A. Miner, judge. The facts were as follows: The transcript was filed on the 20th day of November, 1893, and the abstract upon the same day. The court convened on the 10th day of January, 1894, and no brief had then been filed and on that day the motion to dismiss was made and granted on the succeeding day. Rule 10 of the supreme court as amended June 22, 1893, is as follows: The attorney for the appellant shall serve on the attorney for the respondent, a copy of his points and authorities in the form of a printed brief, at least five days before the commencement of the ensuing term; and within five days therefrom the counsel for the respondent shall serve upon appellant's counsel a like copy of his points and authorities, and before the hearing, the attorney for either of the parties shall file with the clerk of this court eight copies of his brief; and the appellant in his brief shall plainly and distinctly set forth the particular errors, upon which he relies for a reversal of the judgment of the court below. For failure of the appellant to file his brief of points and authorities as required in this rule, the court may, in its discretion, affirm the judgment appealed from, dismiss the appeal, or may examine the record and render such judgment as it may deem just; and for failure of respondent to file his briefs as required by this rule, he shall not be heard on the merits of the cause. Messrs. Evans and Rogers, for the respondent. Mr. E. P. Whipple, for the appellant. It was ordered that the appeal in this cause be dismissed. CACHE COUNTY, RESPONDENT, v. FRED J. KIESEL, APPEAL. APPELLANT. BILL OF EXCEPTIONS. SETTLEMENT BY APPELLATE COURT.-In this case the supreme court refused to settle the bill of exceptions in a case where a contest having arisen over the settlement in the lower court, the matter was brought into the supreme court by an appeal and a motion made in the supreme court to settle the record. APPEAL from an order granting a new trial in the district court of the fourth district, Hon. James A. Miner, judge. The facts were as follows: A jury rendered their verdict in the case for the plaintiff, and as soon as it was rendered one of the attorneys for the plaintiff arose and stated to the court that on any theory of the case the verdict was wrong, and suggested that the court had power on its own motion to set the verdict aside. The court thereupon did set the verdict aside, and the clerk entered the order setting aside the verdict and granting a new trial, as made upon the motion of attorneys for the plaintiff. On a subsequent day of the term the court ordered the record corrected to show that the court made the order on its own motion. The attorney for defendant, appellant herein, objected and appealed and made a motion that the supreme court settle the bill of exceptions in the case, and furnished the stenographer's notes of what took place in court, when the verdict was set aside. The attorneys for the respondent made no resistance to the motion. Mr. A. R. Heywood, for the appellant. Messrs. Evans and Rogers, for the respondent. The court refused to settle the bill of exceptions, and the motion for a new trial then stood upon the record, which showed the granting of a new trial by the court on its own motion, and the appeal was thereupon dismissed, attorney for the appellant not objecting thereto. E. A. JEFFS, RESPONDENT, v. RIO GRANDE WEST- DAMAGES.-KILLING STOCK.-PROXIMATE CAUSE.-Where the evidence showed that a cow was being driven along the street and a dog began chasing her, and she ran across the track and was struck back of the shoulder by appellant's engine, which was running twenty miles an hour, which was in excess of the speed of eight miles an hour permitted by the ordinances of the city, where accident occurred, and the engine was not sounding a bell as required by statute; held, that the evidence warranted a finding of negligence on the part of appellant and that such negligence was a proximate cause of the injury. APPEAL from an order of the district court of the third district and from an order refusing a new trial, Hon. Charles S. Zane, judge. The opinion states the facts. Messrs. Bennett, Marshall and Bradley, for the appellant. The ringing of the bell was intended solely as a warning to human beings and not to cattle, which are not supposed to be endowed with reason so as to understand its meaning. Fisher v. Railway Co., 126 Pa. St. 293; Atkinson v. Water Works Co., L. R. 2 Exch. 441. There is no legal presumption that an omission of signals or running at excessive speed is the cause of an injury to cattle killed at a crossing. Ecans v. Railway Co., 17 Mo. App. 624; Holmes v. Railway Co., 62 Mo. 562; Railway Co. v. Phelps, 29 Ill. 447; Railway Co. v. Stebbings, 62 Md. 504; Railway Co. v. Bolsen, 36 Kans. 534. The excessive speed was not the cause of the cow being killed. She came suddenly and at full speed on the engine. Daniel v. Railway Co., L. R. 3 C. P. 222, and L. R. 5 H. L. 45. There could have been no anticipation of the cow getting to the track at the particular time, and the negligence was not a cause. Railway Co. v. Reeves, 10 Wall. 176; Morrison v. Davis, 20 Pa. St. 171; Denny v. Railway Co., 13 Gray, 481; Daniels v. Ballantine, 23 Ohio St. 532; Dubuque Wood Co. v. Dubuque, 30 Iowa, 176; McClary v. Railway Co., 3 Neb. 44. Mr. John M. Cannon and Mr. Barlow Ferguson, for the respondent. SMITH, J.: In this action the plaintiff recovered judgment below for the value of a milch cow, killed by a switch engine of defendant on a public street in Salt Lake City. The defendant appeals. One error alone is assigned here, to-wit: that the evidence is insufficient to justify the verdict. |