Kansas City, Pittsburg & Gulf Railway Company v. Lowther

• Decision Date: 02 June 1900
• Citation: 57 S.W. 518,68 Ark. 238
• Parties: KANSAS CITY, PITTSBURG & GULF RAILWAY COMPANY v. LOWTHER
• Court: Arkansas Supreme Court

57 S.W. 518

68 Ark. 238

KANSAS CITY, PITTSBURG & GULF RAILWAY COMPANY v. LOWTHER

Supreme Court of Arkansas

June 2, 1900

Appeal from Polk Circuit Court, WILL P. FEAZEL, Judge.

STATEMENT BY THE COURT.

The appellee brought a suit in the Polk county circuit court to recover the penalty provided in sections 6238-9, Sandels & Hill's Digest. The statute referred to provides that ifany railroad, company fails to put in and keep in repair safe cattle guards, after due notice given in writing, the party aggrieved may recover a penalty not less than $ 25 nor more than $ 200. The plaintiff alleged in his complaint that he was the owner of certain lands, describing them, and that he gave the notice mentioned in the statute, in writing, on the 5th day of January, 1898. The plaintiff does not allege that he is in any manner aggrieved, by the failure of the defendant to construct safe cattle guards. The prayer of the plaintiff is for judgment for $ 200 under the section of the digest above mentioned. A copy of the notice is made an exhibit to the complaint,

The defendant's answer denied each and every allegation of the complaint.

In the trial of the case the court at first refused to permit the plaintiff to prove any damage. Later in the progress of the trial the court, over the objection of the defendant permitted the plaintiff to prove that he was damaged and aggrieved. Exceptions were saved by the defendant to the action of the court in said rulings. The evidence shows that during the year 1898 cattle were found in the field of the plaintiff. The plaintiff swears that he saw some of them come over the cattle guards. In driving said cattle out of the field, they were driven over the cattle guards. The evidence of the plaintiff, in substance, is that he was the owner of the farm mentioned in the complaint; that the defendant's railroad was constructed. through the same, and that the cattle guards were unsafe and insufficient to keep cattle out of his field; and that cattle came into his field by reason of said defective cattle guards, and damaged his premises. The only evidence that the plaintiff introduced to prove the notice in writing, as required by section 6238, above mentioned, was the return of the constable on the back of the notice. The defendant introduced D. J. Cavitt, the agent upon whom the constable's return stated that the notice was served, who testified in substance as follows: That the said notice was never served upon him, and that he had no notice whatever of any service of the same.Judgment for plaintiff and appeal to this court.

Reversed and remanded.

Read & McDonough, for appellant.

The complaint did not allege that the plaintiff was in any way damaged or aggrieved; and it was error to admit evidence upon that point. Notice, such as is required by the statute, is simply a fact, and is provable as such. 16 Am. & Eng. Enc Law. 857; 35 Mo. 71; 47 Mo. 304; 7 Vt. 152. The "notice" mentioned in § 6238, Sand. & H. Dig., is not one of the...