Atchison

• Decision Date: 07 April 1884
• Citation: 31 Kan. 708,3 P. 565
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JOHN KING

3 P. 565

31 Kan. 708

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JOHN KING

Supreme Court of Kansas

April 7, 1884

Error from McPherson District Court.

AT the April Term, 1883, plaintiff King recovered a judgment against the defendant Railroad Company for $ 7,500 and costs. This judgment the defendant brings here for review. The opinion states the case.

Judgment reversed and cause remanded.

Geo. R Peck, A. A. Hurd, and W. C. Campbell, for plaintiff in error.

Barker & Pancoast, and Frank G. White, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On May 13, 1881, King brought his action against the Atchison Topeka & Santa Fe railroad company for injuries sustained by him in consequence of the negligence of the company's agents, and by the mismanagement of other employes of the company, while he was attending to his duties as an employe of the company with other section hands, in handling, removing and changing the location of iron rails used by the company in the construction of the track of its road. A general demurrer was filed to the petition, which, upon argument, was sustained at the October term of the court for the year 1881. King was granted leave to file an amended petition. This was filed November 17, 1881. A general demurrer was filed to this amended petition, which demurrer was sustained at the April term of the court for the year 1882. Thereupon King was given leave to file another amended petition. On July 29, 1882, the second amended petition was filed. To this petition another general demurrer was filed, which demurrer, at the October term of the court for 1882, was overruled. The company excepted. On December 20, 1882, the company filed an answer, alleging, among other things, that the injuries complained of by King in his petition did not occur to him within two years preceding the commencement of his action. Trial had at the April term for 1883. Judgment was rendered for King. The company objected to the introduction of any testimony under the petition, and also demurred to the evidence offered in support thereof, upon the ground that the cause of action therein stated was barred by the statute of limitations when it was commenced. Therefore the first question to be disposed of in the case is, whether the action was barred on the 13th day of May, 1881, the date the petition was filed. The second and third subdivisions of § 18 of the code read as follows:

"Second. Within three years: An action upon contract, not in writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty.

"Third. Within two years: An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud -- the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud."

On the part of King it is contended that the action is founded on § 1, ch. 93, Laws of 1874, (§ 29, ch. 84, Comp. Laws of 1879;) and as the action is not maintainable at common law, it is based upon a liability created by statute, and therefore the three-years statute of limitations applies.

On the part of the railroad company it is insisted that the action was barred by the third subdivision of said § 18 of...