Atchison

• Decision Date: 09 October 1885
• Citation: 34 Kan. 132,8 P. 218
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COM- v. CAL. R. GABBERT

8 P. 218

34 Kan. 132

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COM- v. CAL. R. GABBERT

Supreme Court of Kansas

October 9, 1885

Error from Rice District Court.

ACTION brought by Gabbert against The Railroad Company, to recover $ 500 and an attorney's fee, for killing a jackass belonging to the plaintiff. Trial at the March Term, 1884 and verdict for plaintiff for $ 280.13 damages, and $ 25 attorney's fee. New trial denied, and judgment on the verdict for plaintiff, and for costs, taxed at $ 155.75. The defendant company brings the case here. The facts are stated in the opinion.

Judgment modified.

A. A Hurd, John Reid, and Robert Dunlap, for plaintiff in error George W. McCrary, general counsel.

Wm. J. Fuller, and A. M. Lasley, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by Cal. R. Gabbert in the district court of Rice county, against the Atchison, Topeka & Santa Fe Railroad Company, to recover the sum of $ 500 and an attorneys' fee, for the killing of a one-year-old jackass belonging to the plaintiff. The plaintiff alleged, among other things, the failure on the part of the defendant to fence its railroad, the straying of the animal from the plaintiff's premises upon the railroad track without any fault on the part of the plaintiff, and the killing of the animal by the railroad company in the operation of its railroad. All proper allegations were set forth in the plaintiff's petition necessary to enable him to recover under the railroad stock law of 1874.

The defendant in its answer denied generally the allegations of the plaintiff's petition, and also alleged that in Rice county, where the animal was killed, the herd law of 1872 was in force, and that the animal was running at large, in violation of said herd law, when it was killed. To this answer the plaintiff replied by filing a general denial. The case was tried before the court and a jury. Upon the trial it appeared that the railroad was constructed through the plaintiff's land; that the plaintiff's land was inclosed with a fence, but that there was no fence separating the defendant's right-of-way from the plaintiff's land occupied by the plaintiff. Whether the herd law of 1872 was in force or not in Rice county, where the animal was killed, and at the time of the killing, is a disputed question of fact. The defendant claims that it was, but the plaintiff claims that it was not. For the purposes of this case, however, it is immaterial whether such herd law was in force or not in that county; for the plaintiff's jack was pasturing upon his own premises, which were inclosed by a fence, and such jack was not in any sense running at large in violation of any law. (A. T. & S. F. Rld. Co. v. Riggs, 31 Kan. 622.) But still the defendant below, plaintiff in error, claims that the plaintiff cannot recover, upon the ground that the plaintiff was guilty of contributory negligence in permitting his jack to run upon his own premises, unattended by anyone, and without having a fence ordinarily sufficient to prevent such jack from passing upon the defendant's railroad track. This question the defendant below raised by offering to introduce certain evidence, which the court refused, and also by asking the court to give certain instructions to the jury, which the court also refused. Now, while we think that the owner of stock may in some cases be so guilty of contributory negligence that he cannot recover under the stock law of 1874, for animals killed or injured by a railroad company in operating its unfenced railroad, yet we do not think that the evidence offered in the present case tended to show that the plaintiff was guilty of any culpable contributory negligence, or that the instructions asked for by the defendant would have been proper in the case. It is true, as stated in the case of the A. T. & S. F. Rld. Co. v. Riggs, 31 Kan. 622, 632, that--

"If the owner of an animal should negligently permit the same to enter upon the railroad company's track at or about the time when a train was passing, and the animal should thereby be injured, the owner could not recover. And although the owner of live stock may permit the same to pasture on his own land in the vicinity of a railroad track, and although the railroad company may be in fault in not building a fence, yet the owner must use reasonable and ordinary care and diligence for the safety and protection of his stock, or he cannot recover."

But that is not this case. In the present case, the defendant, in offering to introduce the foregoing evidence and in asking the foregoing instructions, virtually asked the court to say as a matter of law that if the plaintiff permitted his "jack to run upon his farm unattended by anyone, or without having a fence ordinarily sufficient to prevent such jack from passing upon the defendant's track," the plaintiff could not recover. This is not the law. Besides the case already cited, see also in this connection A. T. & S. F. Rld. Co. v. Shaft, 33 Kan. 521; Mo. Pac. Rly. Co. v. Bradshaw, 33 id. 533; Prickett v. A. T. & S. F. Rld. Co., 33 id. 748.

The plaintiff in error, defendant below, also claims that the court below erred in permitting certain evidence to be introduced tending to show the value in Rice county of jacks in general of the description, kind and age of the plaintiff's, by a witness who had never seen the plaintiff's jack and had no personal knowledge thereof. As we...