Atchison, Topeka & Santa Fe Railroad Co. v. Bell

• Decision Date: 07 October 1893
• Citation: 34 P. 350,52 Kan. 134
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY et al. v. GEORGE F. BELL

34 P. 350

52 Kan. 134

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY et al. v. GEORGE F. BELL

Supreme Court of Kansas

October 7, 1893

Error from Osage District Court.

THE opinion states the case.

Judgment reversed and a new trial ordered.

A. A Hard, and Robert Dunlap, for plaintiff in error.

Pleasant & Pleasant, for defendant in error.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

This action was brought by Bell to recover the value of two horses, which, he alleges, were killed by the negligence of the servants of the Southern Kansas Railway Company in operating one of its trains of cars. The petition alleges that,

"Before the commencement of this action, the Atchison, Topeka, & Santa Fe Railroad Company, by some arrangement, the date and exact nature of which is to plaintiff unknown, assumed control of said line of railway, and, by written contract, agreed to become, and did become, liable for killing said stock of plaintiff, to the same effect that the Southern Kansas Railway Company is liable; that the plaintiff cannot set out a copy of said written agreement, for the reason that it is not now and never has been in the possession or under the control of the plaintiff."

The answer was simply a general denial, not verified. The jury rendered a general verdict in favor of the plaintiff for $ 169.25, and also answers to certain special questions. The court instructed the jury that

"The answer, not being verified by affidavit, admits that if the Southern Kansas Railway Company at anytime became liable for the injuries complained of, that it, the Atchison, Topeka & Santa Fe Railroad Company, is also liable for the same, by reason of the written agreement specified in said petition."

It is claimed that this instruction is erroneous, but we think otherwise. (Coal. Co. v. Whittaker, 40 Kan. 123, 19 P. 330; Case v. Edson, 40 id. 161; Walker v Fleming, 37 id. 171.) At the time the horses were killed, they, with some cattle belonging to plaintiff, were being driven along the public road toward plaintiff's house by plaintiff's son. He testified that he was about a quarter of a mile, or probably 300 yards, away from the crossing at the time the horses were struck by the train. The testimony shows that the train was moving rapidly, and some witnesses testify that it was running uncommonly fast. The jury find that the trainmen were negligent, and that their negligence consisted in their failure to give any signal, either by blowing the whistle, ringing the bell, or blowing off steam, or attempting to stop the train. They also find that the engineer could not have stopped the train in time to have avoided the injury after he first discovered the horses, and that the failure of the engineer to sound the whistle 80 rods from the crossing was partly the cause of the injury. The train was moving toward the northeast; the cattle and horses were being driven up from the south. There was a hedge fence along the west side of the wagon road extending from the right-of-way southward. The plaintiff himself states that there was no hedge on the right-of-way, but that the hedge along the road started from the edge of the right-of-way; that there was about 20 rods of hedge that ran...