Louisville & N.R. Co. v. Belcher

• Decision Date: 15 October 1889
• Citation: 12 S.W. 195,89 Ky. 193
• Parties: LOUISVILLE & N. R. Co. v. BELCHER.
• Court: Kentucky Court of Appeals

12 S.W. 195

89 Ky. 193

LOUISVILLE & N. R. Co. v. BELCHER.

Court of Appeals of Kentucky.

October 15, 1889

Appeal from circuit court, Logan county.

"To be officially reported."

Action by W. W. Belcher against the Louisville & Nashville Railroad Company to recover for a horse, which was killed on defendant's road. Judgment for plaintiff, and defendant appeals.

W. F Browder, for appellant.

Thos B. Blakey, for appellee.

PRYOR J.

Section 2, c. 57, Gen. St. tit. "Injuries to Person or Property," provides: "If, by the locomotives or cars of a railroad company, cattle or other stock shall be killed or injured on the track of said road, adjoining the lands belonging to or in the occupation of the owner of such cattle or stock, who has not received compensation for fencing said land along said road, the loss shall be divided between the railroad company and the owner of such cattle or stock, unless the killing or injury arose from the willful act or carelessness or negligence of the agents or servants of such company, in which case the whole loss shall be paid by such company."

As we construe this statute, the question of negligence on the part of the company is not required to be alleged or proven in order to entitle the owner of the stock killed or injured to recover of the company one-half the loss sustained. This action by the appellee is based on the statute, and, a recovery having been had in the court below on an admission of the facts alleged by the demurrer filed, the sole question presented is: Did the facts alleged, if true, authorize the judgment, the appellant having declined to amend when the general demurrer was overruled? It is alleged by the plaintiff that his horse was killed on the track of the railroad adjoining the lands in his occupancy, and that he had not received compensation from the company for fencing along said road. All the essentials to constitute a cause of action are set forth, except the alleged failure on the part of the company to compensate the owner of the land to enable him to make the fencing. If neither the owner nor the one occupying the land adjoining the track of the company where the stock was injured had received compensation. a right of action existed for the loss sustained. Under the statute however, compensation may not have been made the one in possession, and still no cause of action will accrue to the occupant if compensation had been made the owner of the adjoining land. The statute reads, "killed or injured on the track of said road, adjoining the lands belonging to or in the occupation of the owner of such cattle or stock, who has not received compensation." The owner of the land may recover when no compensation has been made him, or the occupant may recover if neither have been compensated. If the fact that the owner of the land has not been furnished with the means to construct the fence is a matter of defense, then that fact should have been pleaded, and the demurrer was properly overruled.

The presumption must arise from the averment that the plaintiff occupied the premises; that he was not the real owner; and if compensation has been made the owner, this action must fail. If, then, under...