Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 35 Cal. 325 at 334.
Original Opinion of April, 1868, Reported at: 35 Cal. 325.
JUDGES: Mr. Chief Justice Sawyer delivered the opinion of the court. Mr. Justice Sanderson dissented. Mr. Justice Rhodes did not express an opinion.
OPINION
SAWYER, Judge
A rehearing having been granted, Mr. Chief Justice Sawyer delivered the following opinion of the court, at the April term, 1868: A rehearing having been granted in this case, the most important questions now argued, are, whether the track complained of is a switch and turnout within the meaning of the act granting the franchise. (Stats. 1862, p. 412, sec. 1.) And, if so, whether it is proper and necessary? The second definition of the word " turnout," in the last edition of Webster's Dictionary, is, " A short side track on a railroad, which may be occupied by one train while another is passing on a main track; a shunt, a siding." And a " shunt" is defined, " A turn-off to a side or short rail, that the principal rail may be left free." Now, the track in question exactly fills these definitions. It is a short track at the side of the main track, and connected with it by a switch, and used for the cars from the " Lone Mountain" branch of the road to run upon, and stand in front of the company's office, while the cars on the main road, running to Brannan street, pass and stop to allow the passengers going towards or from Lone Mountain to change cars. Potter, an engineer acquainted with the meaning of terms pertaining to railroads, testifies that " this is a switch, turnout, or side track; the three constitute a turnout." And other engineers and witnesses agree with him. There is no testimony to the contrary. And it is manifestly a switch and turnout within the meaning of the term, as used in the Act. In our judgment, also, the uncontradicted testimony shows that it is a proper and necessary turnout within the meaning of the Act. These terms are not to be construed with great rigor, excluding everything that could by possibility be dispensed with. They are to have a reasonable construction, for the purpose of accomplishing the objects for which the franchise was granted. This object is the accommodation of the traveling public. And it is manifest from the testimony, in connection with the diagram, that travelers are best accommodated by the Lone Mountain car coming up at the junction, and stopping on the side-track in front of the company's office, while the car on the principal route comes up on the main track and stops for the convenience of change of cars. This change might doubtless be effected at the crossing of the streets, but less conveniently to passengers, while the stoppage of the cars in the crossing of two streets would obstruct the other travel of two streets, instead of one. There is no conflict in the evidence, and the only question is, what does it show? To our minds it is clear that the turnout is proper and necessary, within the meaning of the terms of the Act, and is, upon the whole, as well located as it could well be with reference to the general accommodation of the public, and that it is authorized by the Act. The other points, so far as they require notice, are discussed in our former opinion, and we see no reason for changing the views there expressed. We think the judgment and order denying a new trial should be reversed and a new trial had, and it is so ordered.