Martin v. The Chicago

• Decision Date: 11 December 1909
• Docket Number: 16,207
• Citation: 81 Kan. 344,105 P. 451
• Court: Kansas Supreme Court
• Parties: WILLIAM MARTIN, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

105 P. 451

81 Kan. 344

WILLIAM MARTIN, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 16,207

Supreme Court of Kansas

December 11, 1909

Decided July, 1910.

Appeal from Harper district court; PRESTON B. GILLETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NUISANCE--Knowledge of Wrongdoer--Injury to Stock--Notice and Request to Abate Unnecessary to Create Liability. Where a railroad company operates a railroad under a lease which requires it to maintain the roadbed, track, fences and right of way in good repair, and prior to the execution of the lease there had been an excavation made upon the right of way and a barbed wire fence constructed in such a manner as to make the place dangerous to stock pasturing upon the adjoining land, such danger amounting to a nuisance, of which the lessee had actual knowledge, and stock grazing upon the adjoining land are injured on account of such nuisance, no notice and request to abate the nuisance is necessary to make the railroad company liable for the injuries received by the stock.

2. EVIDENCE--Deposition Taken but Not Filed--Application for Order to Produce at Trial. Where a party takes a deposition upon notice as provided by the statute, but does not file it in court, it is not error for the court to refuse to order the deposition to be brought into court, where the application for such order is made for the first time during the progress of the trial.

T. A Noftzger, H. B. Low, and C. O. Blake, for the appellant.

E. C. Wilcox, for the appellee.

OPINION

GRAVES, J.:

This action was commenced in the district court of Harper county by William Martin against the Chicago, Rock Island & Pacific Railway Company to recover the value of a horse alleged to have been killed upon the right of way of the defendant in that county. The railroad, including its fencing, was constructed by the Choctaw & Northern Railroad Company. The road was subsequently sold to the Choctaw, Oklahoma & Gulf Railroad Company, and by it leased, about April, 1905, to the defendant, since which time the defendant has operated the road under such lease. There was a stipulation in the lease binding the defendant to maintain and repair the road, including the right of way, fences and all the other equipments and appurtenances pertaining to the road. When the railroad was originally constructed, which was several years before the injury of which the plaintiff complains occurred, a deep excavation was made on and along the right of way, extending almost to the adjoining property, leaving a high and precipitous embankment upon the right of way between the excavation and the outer line of the right of way. The roadbed was inclosed with a barbed wire fence, which was constructed at the place where the horse was killed upon the right of way and in the excavation, and so near to the embankment as to leave between the fence and the embankment a narrow passageway, too narrow in places for stock the size of horses or cattle to pass. The passageway was of unequal width, being in some places three feet or more and gradually growing narrower to two feet and less in other places. The property adjoining this excavation along the right of way was used as a pasture, and was in the possession of the plaintiff, who occupied it as a tenant. His horse, while running in this pasture, wandered into this narrow passageway, and in attempting to force himself through was cut and lacerated by the barbed wire fence until he bled to death.

The first complaint made by the defendant is the refusal of the court to sustain its motion to compel the plaintiff to make his petition more definite and certain in several particulars. The ordinary and general office of a motion of this kind is to require the plaintiff to plead so that the defendant will be advised of the general character of the plaintiff's cause of action, and be thereby enabled to prepare intelligently to defend against it. In this case the defendant, in the very nature of the situation, must have been as familiar with the facts called for by its motion as the plaintiff. It is evident that the motion was not intended to require the plaintiff to state additional facts in the petition not already known to the defendant, or which would aid it in the preparation of its defense; apparently it was to cause all the facts upon which the defendant thought the plaintiff must rely to be stated in the petition, so the action could be settled upon a general demurrer. In many cases this is a very satisfactory way to settle contested legal questions involved in a lawsuit, and the court might well have sustained the motion for that purpose in this case, but we are unable to say that it was error to refuse to do so.

The real question upon which the defendant apparently relies and which it seriously urges here is that the place where the horse was killed is a nuisance; that it was constructed by the defendant's grantors; that the subsequent maintenance of this nuisance by the defendant, with full knowledge of its dangerous character, does not alone make it liable for damages occasioned thereby. It is insisted that before the defendant can be made liable express notice of the existence of the nuisance and a request to abate it must be given. The petition does not aver such a notice and request, and it was demurred to for that reason, but the demurrer was overruled. The evidence did not establish such a notice and request, and a demurrer to that was overruled.

The court instructed the jury in substance that the maintenance of the nuisance, with knowledge of its dangerous character before the injury, was sufficient to make the defendant liable. This instruction is said to be erroneous. The defendant cites a long line of eminent authorities in support of its contention, commencing with Penruddock's Case (Eng. Com. Pl. [1598], Coke's Rep., vol. 3, p. 205; part 5, p. 100b), of which the supreme court of Michigan said: "It has antiquity on its side and is therefore entitled to all the consideration and weight that time can give to an adjudication as a precedent for other courts to follow." (Caldwell v. Gale, 11 Mich. 77, 83.) The defendant further cites: Philadelphia & R. R. Co. v. Smith, 64 F. 679; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 57 F. 441; Groff v. Ankenbrandt, 124 Ill. 51, 15 N.E. 40; Ahern v. Steele et al., 115 N.Y. 203, 22 N.E. 193.

These are strong cases, but there are many which announce the contrary doctrine. In the case of Union Trust Company v. Cuppy, 26 Kan. 754, this precise question was presented to this court. The trial court gave an instruction to the jury of which complaint was made. The material part of the instruction is copied in the opinion of that case, and reads:

"And now, with particular reference to the defendant, the Union Trust Company, you are instructed that, while it may not have constructed the culvert in question, it would still be liable for any damage occurring during the time the said trust company had charge of the road, occasioned by s wrongful construction, if you find that prior to such injury the said company had actual knowledge that the culvert in...