Atchison, T. & S.F. Ry. Co. v. Adcock

• Decision Date: 03 December 1906
• Citation: 88 P. 180,38 Colo. 369
• Parties: ATCHISON, T. & S. F. RY. CO. v. ADCOCK.
• Court: Colorado Supreme Court

88 P. 180

38 Colo. 369

ATCHISON, T. & S. F. RY. CO. v. ADCOCK.

Supreme Court of Colorado

December 3, 1906

Error to Otero County Court; A. D. Wallace, Judge.

Action by Oliver Adcock against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Charles E. Gast and J. T. McCorlle, for plaintiff in error.

F. A Sabine and R. S. Beall, for defendant in error.

BAILEY J.

This action having been brought in the justice court and then taken by appeal to the county court, there were no written pleadings. The proof shows that the plaintiff was the owner of certain cattle two of which were found dead by the side of the railroad of defendant. From the marks upon the cattle and the ground where they were lying near the track of defendant it was apparent that they were killed upon the track and thrown some little distance. A number of people saw the cattle after they were killed, but none saw them killed. No person knew how they were killed, except as circumstances seemed to indicate their being killed by a passing train. The plaintiff testified that he found the hides of the animals a few days after they were killed hanging on a section house belonging to the railroad company. He looked at the hides and told the foreman they were his. He and the foreman prepared a claim statement on a blank furnished by the foreman. Plaintiff subsequently received a letter from the company and then went to the foreman and demanded the hides. The foreman stated that he had shipped them. Aside from the fact that the cattle were found dead near the railroad, and the hides were in the possession of defendant's foreman, the record is silent as to what became of the bodies of the animals. At the close of the plaintiff's testimony defendant moved for judgment as of nonsuit. This was overruled, and defendant complains that the court erred therein.

The court properly overruled the motion for a nonsuit, because independent of the liability of the company for the killing of the animals, it had no right to convert the animals or any portion thereof to its own use, and the case should have been submitted to the jury upon the question of the conversion, but the court instructed the jury: 'If you find from the evidence that the defendant negligently ran its engine against the cattle and by reason of the wounds received thereby they died, the defendant was liable,' and refused...