Error
from Johnson District Court.
On the
20th day of September, 1886, J. D. Randall filed his petition
against The Atchison, Topeka & Santa Fe Railroad Company
in the district court of Johnson county, in the words and
figures following, to wit (omitting caption):
"1.
And now comes the plaintiff, and for his cause of action
against the defendant herein, states that the said defendant
the Atchison, Topeka & Santa Fe Railroad Company, was at
the date of the grievances hereinafter complained of, has
ever since been, and is now, a corporation duly authorized
and acting under and by virtue of the laws of the state of
Kansas, and operating its line of railroad through said
county; that on October 16, 1884, defendant was transporting
over its line of road through Cedar Junction, in said county
as a common carrier, a large number of Texas steers, animals
which are, as a class, of an ugly, dangerous and vicious
disposition, from some point on its road to plaintiff
unknown, to Kansas City, Mo.; that while so transporting said
steers, the defendant at Cedar Junction, allowed some of them
to escape from the cars and to gore, hook and injure a
certain valuable mare belonging to this plaintiff; whereby
this plaintiff has been damaged in the sum of $ 75 in
medicines, care and attendance in attempting to cure said
mare, and also in the further sum of $ 150, in deterioration
of the value of said mare. Wherefore, this plaintiff prays
judgment against the said defendant for the sum of $ 150, and
for costs of suit.
"2.
Plaintiff for his second cause of action against defendant
herein, states that the said defendant, the Atchison, Topeka
& Santa Fe Railroad Company, was at the date of the
grievances hereinafter complained of, has ever since been
and is now, a corporation, duly organized and acting under
and by virtue of the laws of the state of Kansas, and
operating its line of railroad through said county; that on
October 16, 1884, defendant was transporting over its line of
road, through Cedar Junction, in said county, as a common
carrier, a large number of Texas steers, which were and are
as a class, of an ugly, dangerous and vicious disposition,
from some point on its road to plaintiff unknown, to Kansas
City, Mo. Plaintiff says that defendant, through the
carelessness of its agents and servants in not properly
turning the switch near Cedar Junction, caused some of the
cars in which said steers were being transported, as
aforesaid, to be broken open, so that some of the steers
escaped therefrom, and that the defendant, through its agents
and servants, carelessly and negligently allowed said steers
to escape from their custody and to run at large through the
town of Cedar Junction and the neighboring highways and
commons, and while so at large, one of the said steers did,
on the said 16th day of October, 1884, run against, gore and
injure a valuable mare, the property of this plaintiff, while
in the public streets of the said village of Cedar Junction;
whereby this plaintiff has been damaged in the sum of $ 75 in
medicines, care and attendance in attempting to cure said
mare, and also in the further sum of $ 150 in deterioration
of the value of said mare.
"Wherefore,
plaintiff prays judgment against said defendant, the
Atchison, Topeka & Santa Fe Railroad Company, in the sum
of $ 150, and costs of suit.
"3.
Plaintiff for his third cause of action against defendant
herein, states that the said defendant, the Atchison, Topeka
& Santa Fe Railroad Company, was at the date of the acts
hereinafter complained of, has ever since been, and is now, a
corporation, duly organized and acting under and by virtue of
the laws of the state of Kansas, and operating its line of
railroad through said county; that on October 16, 1884,
plaintiff was the owner of a valuable mare, which the
defendant, through its agents and servants, took from
plaintiff's premises, and employed in and about their
business at Cedar Junction, Kansas.
"Plaintiff
says that the taking and employment of said mare as
aforesaid, were without his knowledge or consent.
"Plaintiff
further says that while so employed by said defendant, his
said mare was gored and wounded by a steer, and that by
reason of said acts of defendant he has been damaged in the
sum of $ 75 in procuring medicines in attempting to cure said
mare, and that he has been damaged in the further sum of $
150 in deterioration in the value of said mare by reason of
said injuries.
"Wherefore,
plaintiff prays judgment in the sum of $ 150 and costs of
suit."
On the
16th day of October, 1886, the railroad company filed the
following answer:
"Now
comes the defendant in the above-entitled cause, and for
answer to plaintiff's petition denies each and every
allegation therein contained.
"For
a second and further defense, the defendant says:
"That
the animals which it was transporting as a common carrier at
the time of the accident complained of by plaintiff, were of
the class known as 'domestic animals.'
"That
the defendant had no knowledge or means of knowledge of said
animals, or any of them, being of an ugly, dangerous and
vicious disposition, to a greater extent than any domestic
cattle.
"The
defendant therefore prays judgment for costs."
Subsequently,
the plaintiff filed a reply denying every allegation in the
answer, inconsistent with the petition.
Trial
was had at the May term of the court for 1887, before the
Hon. JOHN T. LITTLE, judge pro tem., a jury being waived. The
court made and filed the following conclusions of fact:
"1.
That the defendant is a common carrier operating a railway
within and through the county of Johnson and state of Kansas.
"2.
That in the month of October, 1884, the defendant was
transporting on its cars a mixed lot of Texas and Colorado
steers through said county to Kansas City, Mo.
"3.
That at Cedar Junction, in said county, without any fault of
the defendant, the cars became derailed, and the
defendant's servants opened the doors and negligently
permitted said steers to wander over and through the streets
and on the common, in and through said Cedar Junction.
"4.
That defendant by its servants ordered the section foreman to
get and bring said steers up for reloading.
"5.
That Sam. Randall, a son of the plaintiff, at the request of
said foreman procured the horse in controversy from his
father's stable, without his consent, and in driving said
steers to the train, one, a Texas steer, rushed upon the
horse and gored and wounded it in the side. The mare was the
absolute property of plaintiff.
"6.
That plaintiff nor his son in any manner contributed to the
injury of the horse.
"7.
That when defendant's servants turned said steers out of
the cars, they were negligent in not retaining them, as they
might have done, near the cars and within their own
inclosure.
"8.
That by the negligence of defendant's servants the
plaintiff sustained the...
