Lane v. Kansas City

• Decision Date: 06 March 1884
• Citation: 31 Kan. 525,3 P. 341
• Court: Kansas Supreme Court
• Parties: GEO. W. LANE v. THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY

3 P. 341

31 Kan. 525

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

Supreme Court of Kansas

March 6, 1884

Error from Miami District Court.

THE opinion states the nature of the action, and the facts. At the May Term, 1883, plaintiff Lane had judgment for $ 8.50 against the defendant Railroad Company. To reverse this judgment, and also the order overruling his motion for a new trial, Lane brings the case to this court.

Judgment reversed.

Sperry Baker, for plaintiff in error.

Blair & Perry, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by George W. Lane against the Kansas City, Fort Scott & Gulf railroad company, to recover damages for negligently killing two of the plaintiff's cows at a public crossing, and appropriating the hides to its own use. The answer was a general denial. Before the trial, the defendant offered to confess judgment for the value of the hides, $ 8.50, and the offer was declined. The case was tried before the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant for the admitted value of the hides. The plaintiff then filed a motion for a new trial, setting forth various grounds, which motion was overruled by the court, and judgment was rendered upon the verdict. To reverse this judgment and the order of the court overruling the plaintiff's motion for a new trial, the plaintiff now prosecutes a petition in error in this court.

The errors alleged in this court are founded upon the instructions given by the trial court to the jury. The instructions complained of are the sixth, eighth, ninth, tenth, eleventh, twelfth and thirteenth. The sixth instruction was technically erroneous, but probably the error was immaterial. The eighth was probably correct; but the ninth, we think, was materially erroneous. It reads as follows:

"No. 9. Under the pleadings and evidence in this action, the defendant is not liable, unless it was guilty of gross negligence with reference to the acts complained of. And such gross negligence must be proven to exist, and to have been the direct cause of the injury set forth in the plaintiff's petition in this action. Gross negligence is the want of slight diligence, and in this action there must have been an absence of even slight care on the part of the defendant before plaintiff can recover."

The plaintiff's petition, besides stating the facts of his case sufficiently, also alleges that the defendant's employes in killing the plaintiff's cows, "were guilty of gross carelessness and a reckless disregard for the rights of others," and the evidence shows, among other things, the following: The cows were killed where the defendant's railroad track crosses a public road. The plaintiff's servant was driving them along the public road, toward their home, when, just as they entered upon the railroad track, the engine of a passing train struck the cows and killed them almost instantly. There were circumstances which...