Chi., B. & Q. R. Co. v. King

• Decision Date: 03 May 1906
• Citation: 107 N.W. 981,76 Neb. 591
• Parties: CHICAGO, B. & Q. R. CO. v. KING.
• Court: Nebraska Supreme Court

76 Neb. 591

107 N.W. 981

CHICAGO, B. & Q. R. CO.

v.KING.

Supreme Court of Nebraska.

May 3, 1906.

Syllabus by the Court.

Section 1, art. 1, c. 72, Comp. St. 1905 (Cobbey's Ann. St. 1903, § 10,020), making railroad companies liable for injuries to stock upon their failure to maintain fences along the right of way and cattle guards at highway crossings, was not intended to provide a penalty for failure to maintain such safeguards, but merely to render such companies liable to the owner of stock injured in consequence of such failure.

A petition for damages for the loss of stock based on said section, which contains no allegation tracing such loss to the failure of the railroad company to maintain fences or cattle guards is fatally defective.

Petition examined, and held, that the facts therein stated are insufficient to constitute a cause of action.

Commissioners' Opinion. Department No. 2. Error to District Court, Red Willow County; Orr, Judge.

Action by Charles H. King against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.J. W. Deweese and F. E. Bishop, for plaintiff in error.

Starr & Reeder, for defendant in error.

ALBERT, C.

The petition filed in the court below is as follows: “(1) That the defendant, the Chicago, Burlington & Quincy Railway Company, is a corporation, incorporated under the laws of the state of Iowa, and doing business under the laws of the state of Nebraska. (2) That on or about the 24th day of August, 1903, said defendant was operating a railroad through Red Willow county, Neb. (said railroad having been opened and operated for more than six months in said county), and while so operating said road, at the time above stated, at a place on said road therein, where said road crosses a public highway, running north and south between sections 9 and 10 in township 3, north of range 27, west of the sixth principal meridian, in Nebraska, where said road is required by law to provide suitable crossings and guards, suitable and sufficient to prevent cattle from getting on to said railroad, but had failed to do so, said defendant, by its agents and employés, ran an engine and train of cars over and upon nine head of two year old steers, being the property of the plaintiff, and of the value of $270 by reason of which said stock was killed, to the damage of the plaintiff in the sum of $270. Wherefore plaintiff prays judgment against said defendant for his damages herein sustained for the sum of $270, and costs of suit.” An answer was filed, admitting the corporate character of the defendant, and that at date alleged in the petition it was and for more than six months had been operating the railroad described in the petition, but denying each and all of the other allegations of the petition. Subsequently, and before the trial, a motion for judgment on the pleadings, and an objection to the introduction of any evidence by the plaintiff, for the reason that the facts stated in the petition were not sufficient to constitute a cause of action, were successively filed by the defendant, and overruled by the court. A trial to a jury resulted in a verdict and judgment for the plaintiff (the defendant in error in this court), and the defendant brings error.

The sole...