Kansas City

• Decision Date: 09 July 1885
• Citation: 33 Kan. 702,7 P. 587
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY v. GEORGE W. LANE

7 P. 587

33 Kan. 702

THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY v. GEORGE W. LANE

Supreme Court of Kansas

July 9, 1885

Error from Miami District Court.

Action brought by Lane against The Railroad Company, to recover damages for the alleged negligent killing of two cows belonging to the plaintiff. Trial at the May Term, 1884, and judgment for plaintiff for $ 100 and costs. The defendant brings the case here. The material facts are stated in the opinion.

Judgment affirmed.

Wallace Pratt, and Blair & Perry, for plaintiff in error.

Sperry Baker, for defendant in error.

JOHNSTON J. All Justices concurring.

OPINION

JOHNSTON, J.:

This action was brought by George W. Lane against the Kansas City Fort Scott & Gulf Railroad Company, to recover damages for the alleged negligent killing of two cows belonging to the plaintiff, on the 8th day of December, 1882, at a point near the city of Paola, in Miami county, where the defendant's railroad crosses a public highway. It was alleged by the plaintiff that the cows were struck and killed by the defendant's locomotive and passenger train, which was going north at a high rate of speed, and that the railroad track for a distance of eighty rods south of the point of crossing this highway is nearly straight and level, so that any obstacle upon the track could have been readily seen by the persons in charge of the locomotive. But it is charged that on approaching the highway-crossing the employes of the defendant failed to blow the locomotive whistle, as is required to be done, and failed to. ring the bell or give any signal whatever of their approach. And the plaintiff charges that the killing of the cows was the result of the recklessness and negligent management of the locomotive and train. The plaintiff further charges, that defendant skinned the two cows and appropriated their hides to its own use. The defendant denied that it negligently and carelessly killed the cows, but admitted the taking of the hides, and offered to confess judgment for their value.

A trial was had at the May term, 1883, of the district court of that county, and a judgment rendered in favor of the plaintiff for the value of the hides only, and thereupon the plaintiff prosecuted a petition in error in this court to reverse that judgment. At the January term, 1884, of this court, the judgment was reversed, and the cause remanded for a new trial. (Lane v. K. C. Ft. S. & G. Rld. Co., 31 Kan. 525.) Upon the second trial, which was before the court and a jury, it was admitted by the defendant that the plaintiff was the owner of the cows at the time they were killed; and that they were of the value of $ 100, as claimed by the plaintiff; and also that the cows were killed by the defendant's engine and train of cars at the time and place stated by plaintiff, but not negligently. The verdict and judgment were in favor of the plaintiff for the agreed value of the cows, and the defendant now comes here alleging error.

The assignments of error assail the rulings of the court in giving and refusing instructions, in the admission of testimony, and in overruling the motion for a new trial.

I. The court in its third instruction told the jury, among other things, that--

"In cases of apprehended danger, it is the duty of persons in charge of a running train, on approaching the crossing of a public highway, to take such precautions as reasonable care would suggest, taking into consideration the safety of its patrons and passengers using and riding on the train; and if in the exercise of such precaution and care, in the judgment of the engineer in charge of the train there was greater danger to the train and its passengers in attempting to stop it after he did see or could have seen the cows on the track, he would be justified in keeping on, although he may have knocked the cows from the track; and whether such necessity existed, or not, must be determined by the jury from all the facts and circumstances of the case as shown by the evidence on the trial."

It is objected that this instruction assumed that there was apprehended danger when the train was approaching the crossing where the cows were killed, and is therefore misleading. It is not, we think, open to the criticism made. The court does not therein intimate an opinion that danger existed, or that it was apprehended by the engineer; but the instruction was obviously founded upon the claim made and the testimony offered on the part of the railroad company. The engineer in charge of the locomotive testified that he did not reverse the engine after seeing the cows upon the track that the cows were not seen by him until he was within about one hundred and fifty yards of the crossing; that the train was running at the rate of about forty miles an hour, and there would have been great danger in stopping the train by reversing the engine, as it probably would have thrown the train off the track. It will therefore be seen that the instruction was really in the interest of and beneficial to the defendant, and the defendant at least has no reason to complain of...