Freeman v. Missouri P. Ry. Co.
| Decision Date | 06 October 1917 |
| Docket Number | 21064 |
| Citation | 167 P. 1062,101 Kan. 516 |
| Parties | FREEMAN v. MISSOURI PAC. RY. CO. |
| Court | Kansas Supreme Court |
Three separate actions against the same defendant, brought in the justice court, each for less than $100, were appealed by the defendant to the district court, where, on defendant’s motion, the actions were consolidated and tried as one, and judgment rendered in plaintiff’s favor for $180 and costs. Held that, plaintiff having made no objection to the consolidation of the actions for the purpose of trial, it is too late to urge that this court has no jurisdiction, on the ground that there are three separate actions, each for less than $100.
In an action to recover damages for injuries to cattle escaping from a pasture by reason of a defective cattle guard maintained on its right of way by the defendant, the plaintiff proved 16 separate escapes of the cattle, and recovered damages of $1 per head for each time they escaped and for the cost and expenses of returning them to the pasture. Held, that the doctrine that one who is injured by the wrongful act of another cannot remain inactive and allow increased damages to accrue, and recover them from the wrongdoer, when at slight expense he could have averted the damages or reduced the amount thereof (Atkinson v. Kirkpatrick, 90 Kan. 515, 135 P. 579), did not require plaintiff to go upon defendant’s right of way and fix the cattle guard after defendant’s refusal to comply with his request to repair it nor require plaintiff to employ a herder to prevent the cattle from escaping until such time as the defendant would repair the cattle guard.
In the action described in the foregoing paragraph, the plaintiff was not entitled to recover expenses incurred in going to and from his residence, which was five miles from the pasture, in order to return the cattle.
Appeal from District Court, Ellsworth County.
Actions in justice’s court by G. M. Freeman against the Missouri Pacific Railway Company, consolidated on appeal to district court and tried as one action. Judgment for plaintiff, and defendant appeals. Modified.
W. P. Waggener and J. M. Challiss, both of Atchison, and W. R. Seaver, of Tulsa, for appellant.
Ira E. Lloyd and N. F. Nourse, both of Ellsworth, for appellee.
G. M. Freeman owned 55 head of cattle, and on April 20, 1915, placed them in a pasture in Ellsworth county, through which the defendant maintained its line of railway. At various times the cattle escaped from the pasture through a defective and worthless cattle guard maintained by the defendant, and on May 4, 1915, plaintiff brought an action against defendant before a justice of the peace to recover the sum of $90, alleging that 16 head of the cattle escaped on April 28th, and that he was damaged on account of loss of time in putting them back in the pasture and that the cattle were made restless and were damaged thereby; that on May 1st 11 head of the cattle escaped under the same conditions, and with the same damage; that on May 2d 20 head, and on May 3d 14 head, escaped under like conditions, and with like damage.
On May 11, 1915, he brought another action before the same justice of the peace, alleging that 20 head of cattle escaped under the same conditions, and with like damage, on May 4th, 5th, 6th, 7th, 8th, and 9th, and he asked damages in the sum of $96.
On May 20th he brought another action before the same justice in which he alleged that on May 10th and 11th 20 head, and that on May 15th 4 head, escaped, and that 22 head of his cattle escaped from the pasture at three different times on the same day, May 16th, and that on the same day 18 escaped, and that at another time 11 head escaped, and ran at large, all to his damage in the sum of $91. He asked damages for the cost and expense and loss of time in putting the cattle back into the pasture, and alleged that in each escape the cattle were rendered unruly and restless, and were damaged on account of being absent from the pasture.
The three actions were appealed to the district court, and there consolidated and tried as one action. The jury returned a verdict in plaintiff’s favor for $180 and costs, upon which judgment was rendered. The railway company appeals.
There is a motion by the plaintiff to dismiss the appeal, on the ground that there are three separate actions, and that, notwithstanding the consolidation of the actions for the purpose of trial, the amount involved in each being less than $100, this court has no jurisdiction. The contention is that the court could not by consolidating the actions deprive the plaintiff of the right to insist that the judgment was final. It is said that the consolidation was forced by the defendant. The plaintiff’s counter abstract shows a motion by the defendant that the three actions be consolidated and tried as one, and the journal entry of the ruling on this motion merely shows that the court sustained the motion. The record shows the consolidation was made without any objection on the part of the plaintiff, and we think the effect was the same as though the plaintiff had consented to the consolidation of the cases as one action. In Skinner v. Cowley County, 63 Kan. 557, 66 P. 635, three separate actions were consolidated in the district court by consent of the parties, and it was held that, one judgment having been rendered which aggregated more than $100, this court had jurisdiction. It would not do to permit the plaintiff to sit by and waive his objections to the consolidation, and be in a position to appeal in case the judgment was adverse to him, and, on the other hand, with the judgment in his favor, question the right of the defendant to appeal from a judgment against it.
The plaintiff testified that the first time the cattle escaped he was telephoned and went over with a horse and buggy, unlocked a gate, and drove the cattle in. He thought his time was worth $2.50. Over the objection of the defendant, he testified that the cattle were damaged $1 a head each time they got out. After the first escape of the cattle, he went to the station agent of the railway company and asked him to have the section man fix the cattle guard and told him that it would take but a little time to repair it, so that it would turn the cattle. He testified on cross-examination that an hour’s work by a man would have repaired the guard, so as to keep the cattle in the pasture. In answer to questions on cross-examination, he said that half an hour’s work would have put the wing of the cattle guard in shape to prevent the cattle from escaping;...
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