Hester v. Chicago, R. I. & P. Ry. Co.
| Decision Date | 07 June 1920 |
| Docket Number | (No. 35.) |
| Citation | 222 S.W. 356 |
| Parties | HESTER v. CHICAGO, R. I. & P. RY. CO. et al. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Saline County; W. H. Evans, Judge.
Action by Joe Hester against the Chicago, Rock Island & Pacific Railway Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.
Arthur C. Thomas and J. S. Utley, both of Benton, for appellant.
Thos. S. Buzbee, H. T. Harrison, and C. L. Johnson, all of Little Rock, for appellees.
This action was brought by the appellant against the appellee. The appellant alleged, in substance, that the appellee operated a railroad over 100 miles long in the state of Arkansas and over certain lands in Saline county, Ark., describing them; that in the year 1918 appellant cultivated a crop of corn consisting of 30 acres on the land described; that prior to 1918 the appellee had constructed stock guards on both the east and west sides of the inclosure of the lands at the points where the railroad enters the inclosure, but had negligently failed and refused to maintain said stock guards in a suitable and safe condition; that appellee prior to the year 1918 had erected a fence along each side of its right of way over said lands, but had negligently permitted them to become so out of repair as to not be substantially and sufficiently in condition to keep live stock from passing through and under said fence and into the adjoining lands of the appellant as described in the complaint; that as a result of the negligence of appellee in failing and refusing to keep and maintain said stock guards in a suitable and safe condition, and in negligently permitting said fence to become out of repair as aforesaid, that hogs passed over said stock guards onto appellee's right of way and thence through said right of way fences onto said lands of appellant, destroying his crop and damaging him in the sum of $1,120, for which damages he prayed judgment. The appellee demurred to the complaint on the grounds: First, that the complaint does not allege that written notice had been given the appellee or its agent that the stock guards were in a defective condition. Second, because the allegations of the complaint are not sufficient to constitute a cause of action against the appellee. The court sustained the demurrer and entered judgment dismissing appellant's complaint. From that judgment is this appeal.
First. The complaint does not state a cause of action under sections 6644 and 6645 of Kirby's Digest, as amended by Act 53 of the Acts of 1909, p. 135, for the reason that the complaint does not allege that the written notice required by the statute had been given. The giving of this notice is a condition precedent to the right of recovery in an action based on that statute. C., R. I. & P. Ry. Co. v. Adams, 84 Ark. 14, 106 S. W. 200.
Second. The complaint does not state a cause of action under Act 447 of the Acts of 1911, as amended by Act 53 of the Acts of 1913. The statute is as follows:
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