Zane, C. J.
This was an action to recover damages in consequence of the death of Charles A. Nelson, caused as alleged, by the negligence of the defendant in placing three refrigerator cars between the caboose and eleven cars loaded with sheep in charge of deceased and two other men, and in constructing and maintaining a snow shed so low that deceased was killed by it while passing over a refrigerator car from the sheep cars to the caboose, the refrigerator car being about eighteen inches higher than other freight cars. The trial of the cause commenced on January 11th, 1898. When the jurors were called, the defendant challenged the array because the commissioners who selected [251]*251them were not appointed prior to the first day of the preceding December, as directed by section 1302, R. S. U. 1898.
In the case of Kennedy v. The Oregon Short Line Ry. (decided at this term) we held the time for appointing commissioners, as well as the time for selecting jurors by them under Sec. 1306, is directory. The time named in a law for an act should be held directory, when not forbidden at another time unless the doing of it at another time would unjustly affect private or public interests. "We find no language in the statute expressly denying the power to appoint the commissioners, or their power to ■select jurors later than the time mentioned in the law. Therefore we are of the opinion the court did not err in denying defendant’s challenge to the array.
When this cause was before us at a former term we held, as we have also held in other cases, that under Sec. 9, Art. 8 of the Constitution, this court cannot review findings of fact further than is necessary to determine questions of law. Regarding that question as settled, we must recognize all facts as to which the evidence is conflicting as settled by the lower court. 15 Utah, 325.
One Philander Y. Saunders was with the deceased when killed, and he was also injured, though not fatally. His case against the same defendant was before us on appeal from a judgment of non-suit at a former term. 13 Utah, 275.
The evidence in that record was, in effect the same as the evidence in this, and some of the questions of law now raised we must regard as having been determined by us then.
This being an action at law, we must assume facts to exist which the evidence tends to prove, as upon a motion for a non-suit; in either case the same rule applies.
[252]*252After stating the evidence at length in the case of Saunders against this defendant, supra, the court said, “Assuming these facts to be true, which is the rule for the purposes of a non-suit, the question is, do they present such a case of négligence on the part of the defendant, and such a want of contributory negligence on the part of the plaintiff as will render the defendant liable ? ” And later, in the same opinion, the court said:
“Being on the train, it was the plaintiff’s duty to care for the sheep. After having attended to his duty in this regard, he was, of necessity, compelled to return to the caboose; because there was no place provided for him in the sheep cars to remain there, and to do so would disturb-the sheep and produce the very effects which it was his duty to prevent. He could not return through the cars, on account of the refrigerator cars, through which he could not pass, having been placed next to the caboose, and therefore attempted to return over the top of them, as stockmen had been accustomed to do.
The conductor knew he was somewhere on the train, and was compelled to go over the tops of the cars to get to the caboose, but gave him no warning of its approaching the snowshed, which was of insufficient height to permit him to pass through safely while walking on the runuing boards. Under these existing facts and circumstances, it is not absolutely necessary or material to decide whether or not it was negligence per se, on the part of the railroad company, to maintain the snowshed in question at an insufficient height to allow a person to pass through safely while walking on top of the moving cars, although we are inclined to the affirmative of this view, as founded on both reason and justice. If, however, for any reason, an overhead structure, which exposes persons who are rightfully on a moving stock train, as was the plaintiff, to [253]*253■unusual risks, may be unlawfully maintained at such height, then every principle of justice, as well as the exercise of ordinary care, requires that the company which maintains such structure shall give warning in some way — either by-word, or other proper method — of the trains approaching the same, to all persons whose duties may expose them to the danger of being injured because of the structure. The giving of such warning is a duty which such company cannot fail to perform, and escape liability for injuries which result as a natural sequence, because of such failure, 'and in the performance of such duty it is bound to exercise due care.”
Finally the court used this language:
“We conclude that the appellant was rightfully on the train, and had the right to assume that the snowshed was a safe structure, having received no notice to the contrary; that the respondent, on the occasion of the accident, was guilty of negligence, under the circumstances indicated by the proof; and that there was presented a question for the jury, and not one of law for the court. Whether or not the appellant, under the peculiar facts and circumstances of this case, was himself guilty of a want of ordinary care, which contributed to the injury, was also a question for the jury. The court was not warranted, under the circumstances shown by the record, in deciding as a matter of law, that the appellant was guilty of such contributory negligence as precluded a recovery, and therefore was not warranted in granting the non-suit, or denying the motion for a new trial.”
The evidence in the record, now at hand, as to the right of the deceased to be upon the defendant’s, train, and as to the circumstances in view of which he attempted to go from the sheep cars over the refrigerator cars to the caboose, for the purpose of this appeal, are in effect the [254]*254same as in the case of Saunders against the same defendant, supra. The evidence of Saunders’ right to be upon the train, and of the circumstances under which he was injured are substantially the same as that of the right of the deceased to be upon the train, and of the circumstances under which he was killed. The reason for putting the refrigerator cars between the sheep cars and the caboose appears to be frivolous, and the evidence fails to show any justification for maintaining the snowshed so low as to endanger the lives of persons rightfully on top of their cars. It appears that the sheds recently built are high enough to allow cars with persons standing upon them to pass safely through them. It is no sufficient excuse to say the raising of the sheds would involve additional expenditures of money. If it may be in any case impracticable to build any overhead structure not sufficiently high to permit persons rightfully upon their cars to pass under them safely, the company should take all reasonable precautions to prevent injury by giving timely warning of danger. The sound of a whistle might be sufficient to a person understanding it to mean overhead danger; but to another, not informed of its meaning, it would not be sufficient.
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Zane, C. J.
This was an action to recover damages in consequence of the death of Charles A. Nelson, caused as alleged, by the negligence of the defendant in placing three refrigerator cars between the caboose and eleven cars loaded with sheep in charge of deceased and two other men, and in constructing and maintaining a snow shed so low that deceased was killed by it while passing over a refrigerator car from the sheep cars to the caboose, the refrigerator car being about eighteen inches higher than other freight cars. The trial of the cause commenced on January 11th, 1898. When the jurors were called, the defendant challenged the array because the commissioners who selected [251]*251them were not appointed prior to the first day of the preceding December, as directed by section 1302, R. S. U. 1898.
In the case of Kennedy v. The Oregon Short Line Ry. (decided at this term) we held the time for appointing commissioners, as well as the time for selecting jurors by them under Sec. 1306, is directory. The time named in a law for an act should be held directory, when not forbidden at another time unless the doing of it at another time would unjustly affect private or public interests. "We find no language in the statute expressly denying the power to appoint the commissioners, or their power to ■select jurors later than the time mentioned in the law. Therefore we are of the opinion the court did not err in denying defendant’s challenge to the array.
When this cause was before us at a former term we held, as we have also held in other cases, that under Sec. 9, Art. 8 of the Constitution, this court cannot review findings of fact further than is necessary to determine questions of law. Regarding that question as settled, we must recognize all facts as to which the evidence is conflicting as settled by the lower court. 15 Utah, 325.
One Philander Y. Saunders was with the deceased when killed, and he was also injured, though not fatally. His case against the same defendant was before us on appeal from a judgment of non-suit at a former term. 13 Utah, 275.
The evidence in that record was, in effect the same as the evidence in this, and some of the questions of law now raised we must regard as having been determined by us then.
This being an action at law, we must assume facts to exist which the evidence tends to prove, as upon a motion for a non-suit; in either case the same rule applies.
[252]*252After stating the evidence at length in the case of Saunders against this defendant, supra, the court said, “Assuming these facts to be true, which is the rule for the purposes of a non-suit, the question is, do they present such a case of négligence on the part of the defendant, and such a want of contributory negligence on the part of the plaintiff as will render the defendant liable ? ” And later, in the same opinion, the court said:
“Being on the train, it was the plaintiff’s duty to care for the sheep. After having attended to his duty in this regard, he was, of necessity, compelled to return to the caboose; because there was no place provided for him in the sheep cars to remain there, and to do so would disturb-the sheep and produce the very effects which it was his duty to prevent. He could not return through the cars, on account of the refrigerator cars, through which he could not pass, having been placed next to the caboose, and therefore attempted to return over the top of them, as stockmen had been accustomed to do.
The conductor knew he was somewhere on the train, and was compelled to go over the tops of the cars to get to the caboose, but gave him no warning of its approaching the snowshed, which was of insufficient height to permit him to pass through safely while walking on the runuing boards. Under these existing facts and circumstances, it is not absolutely necessary or material to decide whether or not it was negligence per se, on the part of the railroad company, to maintain the snowshed in question at an insufficient height to allow a person to pass through safely while walking on top of the moving cars, although we are inclined to the affirmative of this view, as founded on both reason and justice. If, however, for any reason, an overhead structure, which exposes persons who are rightfully on a moving stock train, as was the plaintiff, to [253]*253■unusual risks, may be unlawfully maintained at such height, then every principle of justice, as well as the exercise of ordinary care, requires that the company which maintains such structure shall give warning in some way — either by-word, or other proper method — of the trains approaching the same, to all persons whose duties may expose them to the danger of being injured because of the structure. The giving of such warning is a duty which such company cannot fail to perform, and escape liability for injuries which result as a natural sequence, because of such failure, 'and in the performance of such duty it is bound to exercise due care.”
Finally the court used this language:
“We conclude that the appellant was rightfully on the train, and had the right to assume that the snowshed was a safe structure, having received no notice to the contrary; that the respondent, on the occasion of the accident, was guilty of negligence, under the circumstances indicated by the proof; and that there was presented a question for the jury, and not one of law for the court. Whether or not the appellant, under the peculiar facts and circumstances of this case, was himself guilty of a want of ordinary care, which contributed to the injury, was also a question for the jury. The court was not warranted, under the circumstances shown by the record, in deciding as a matter of law, that the appellant was guilty of such contributory negligence as precluded a recovery, and therefore was not warranted in granting the non-suit, or denying the motion for a new trial.”
The evidence in the record, now at hand, as to the right of the deceased to be upon the defendant’s, train, and as to the circumstances in view of which he attempted to go from the sheep cars over the refrigerator cars to the caboose, for the purpose of this appeal, are in effect the [254]*254same as in the case of Saunders against the same defendant, supra. The evidence of Saunders’ right to be upon the train, and of the circumstances under which he was injured are substantially the same as that of the right of the deceased to be upon the train, and of the circumstances under which he was killed. The reason for putting the refrigerator cars between the sheep cars and the caboose appears to be frivolous, and the evidence fails to show any justification for maintaining the snowshed so low as to endanger the lives of persons rightfully on top of their cars. It appears that the sheds recently built are high enough to allow cars with persons standing upon them to pass safely through them. It is no sufficient excuse to say the raising of the sheds would involve additional expenditures of money. If it may be in any case impracticable to build any overhead structure not sufficiently high to permit persons rightfully upon their cars to pass under them safely, the company should take all reasonable precautions to prevent injury by giving timely warning of danger. The sound of a whistle might be sufficient to a person understanding it to mean overhead danger; but to another, not informed of its meaning, it would not be sufficient. The warning should be timely and reasonable, and calculated to give warning to all persons rightfully on top of its cars, of the particular danger ahead. Chicago, M. & St. P. R’y. Co. v. Carpenter, 56 Fed. 451; 1 Shearman & Redfield on Negligence, Sec. 198, (4th ed.) C. & A. R. R. Co. v. Johnson, 116 Ill., 206; Indianapolis R. R. Co. v. Horst, 93 U. S. 291.
Defendant’s counsel assigns as error the rulings of the court admitting proof that persons in charge of stock usually pass over the tops of cars, between their stock and the caboose, in attending to it while in transit, and insist that the proof, if admitted, should be sufficient to establish a common law custom.
[255]*255The evidence was not offered to prove a common law custom having effect of a law. Evidence that deceased in passing over the top of the car was doing what other stock men similarly situated were in the habit of doing was proper. Such evidence was admitted as tending to prove defendant was rightfully on top of the car when killed and not guilty of contributory negligence in being there; that he was simply in the discharge of his duty as indicated by a usage among stockmen recognized by railroad men. It is not necessary that such a practice shall possess all the elements of a common law custom.'
In Morningstar v. Cunningham, 110 Ind. 328, the court said, “In such case,, evidence of the known and usual course of a particular trade or business is competent with a view of raising a presumption that the transaction in question was according to the ordinary and usual course of the business to which it is related. * * * It is not essential that such a usage should be shown to be ancient ‘That the memory of man runneth not to the contrary,’ nor that it should contain all the other elements of a common law custom as defined in the books.” Carter v. Philadelphia Coal Co., 77 Cal. 286.
Further, we are of the opinion the court did not err in permitting evidence of what was usual and customary .among stockmen as to going upon the tops of cars under the circumstances and conditions surrounding the deceased when he was killed.
In the case of Chicago, M. & St. P. Ry. Co. v. Carpenter, supra, the court said:
‘ ‘ In determining the question of negligence in a given case (where the quality of the act in the respect of its being negligent or other-wise is not obvious) it is always proper to consider what other persons of ordinary prudence, who are engaged in the same calling, under like [256]*256circumstances, are in the habit of doing or ordinarily do. This is the universal test of negligence.
In view of these considerations, we have reached the conclusion that the testimony relative to the custom in vogue among persons having charge of live stock on freight trains was properly admitted, both for the purpose of rebutting the charge of contributory negligence, and for the purpose of showing that railway companies permit stockmen to pass over the tops of freight trains on the running boards provided for that purpose, when the vicissitudes of the journey render it necessary to do so, to reach their stock and attend to it, or to reach the caboose. As there was considerable testimony on the trial which tended strongly to show that persons in charge of live stock on freight trains frequently find it necessary, in attending to their stock properly, to' get on the top of a train, and to walk back to the caboose, or to ride on the top of a car for some distance till the train stops; and as it further tended to show that it was a common practice on the defendant company’s road, as well as upon other railroads, for stockmen to get on the top of a train, and to walk back to the caboose, when it becomes necessary to do so; and as it also tended to show that the company had never made any objections to such practice on the part of persons in charge of stock, we are constrained to hold, that it was the province of the jury to decide, in the light of all the evidence, as to the existence of the custom, and as to whether it was necessary for Carpenter, in the proper discharge of his duty, on the occasion in question, to get on the top of the train, and whether he went there rightfully in view of the existing usage, and in so doing exercised ordinary care and circumspection.”
It appears from the evidence that one copy of the contract under which the sheep were shipped was given to [257]*257the deceased, and the other was retained by the defendant. The one retained was introduced in evidence, but the other after diligent search could not be found. The name of the deceased was not on the one retained by the company, and a witness who saw the one delivered testified, over the defendant’s objection, that the name of the deceased was on it. The ruling of the court in admitting this testimony the defendant assigns as error.
It was proper to establish that deceased was rightfully on the train by proving his name was on the contract delivered to him by defendant as one who had a right to attend the sheep, and the written contract held by him being lost it was competent to prove its contents.
The rulings of the court in overruling objections to a number of other questions are assigned as error, but upon a careful consideration of them, we are unable to find any reversible error. The same may be said of the errors assigned upon exceptions to the charge of the court, and the refusal of requests asked by defendant’s counsel.
The judgment is affirmed, with costs.
Cherry, Dist. Judge, concurred.