Missouri Pac. Ry. Co. v. Finley

• Decision Date: 11 February 1888
• Citation: 16 P. 951,38 Kan. 550
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. LEANDER FINLEY
• Court: Kansas Supreme Court

16 P. 951

38 Kan. 550

THE MISSOURI PACIFIC RAILWAY COMPANY v. LEANDER FINLEY

Supreme Court of Kansas

February 11, 1888

Error from Brown District Court.

ON April 21, 1885, Leander Finley filed his petition against The Missouri Pacific Railway Company, and therein alleged that the said defendant is, and for more than two years last past has been, a railroad corporation duly organized and doing business in the state of Kansas; that during the whole of the year 1884, the said defendant was, ever since has been, and still is engaged in operating a railroad running from the city of Atchison, in Atchison county, Kansas, into and through the county of Brown, in said state, and so on to Omaha in the state of Nebraska, known as the Missouri Pacific Railroad, and in so doing was during all that time, ever since has been, and still is a common carrier of freight and passengers on said railroad, and as such, on or about the 9th day of May, 1884, the said defendant ran a train of its cars over its road into said Brown county, in which said train of cars there was being transported as freight by the defendant as a common carrier, about one hundred head of Texas cattle of wild and undomesticated habits, and which said cattle were diseased with a disease known as "Texas, splenic or Spanish fever;" that the defendant knew that said cattle were Texas cattle, and that they were of wild and undomesticated habits, and that they were diseased with a disease known as Texas, splenic or Spanish fever, and that said Texas cattle, as the fact is, would communicate said disease to all cattle in this state that passed over the ground on which said Texas cattle passed; that when said train of cars reached a point on said railroad in said Brown county, about two and one-half miles northwest from a station on said railroad called Baker, in said Brown county, the train on which said cattle were taken into Brown county, and on which they were as aforesaid being transported by the defendant through said Brown county, was wrecked, and said cars in which said cattle were, thrown from the track of said defendant's railroad, and were by said defendant and its servants unloaded, and let out of said cars; that the owner of said cattle was on said train, and notified said defendant that said cattle were through cattle and Texas cattle meaning thereby, which the defendant knew, and so understood that they were Texas cattle and were so as aforesaid diseased, and that the persons there present requested the defendant and its agents, servants and employes to reload said cattle at the same place where they were so as aforesaid unloaded, and not to drive them to any station; but the defendant, notwithstanding such notice and said request wrongfully and unlawfully drove said cattle from the place last aforesaid along and upon the highway to Hiawatha, in said county, over a portion of the territory of Brown county aforesaid, and reloaded said diseased cattle at Hiawatha aforesaid; that at said time and for several months afterward, this plaintiff was the owner of a large number of domestic cattle, and that without the fault of the plaintiff the said diseased cattle communicated the said disease of Texas, splenic or Spanish fever to plaintiff's said domestic cattle, and infected plaintiff's said domestic cattle with the said disease of Texas, splenic or Spanish fever, and in consequence thereof a large number of plaintiff's said cattle which were of high grade and of great value, to wit, twelve head, some being with calf, and of the value of nine hundred dollars, died and were injured; that the plaintiff spent two months of valuable time, worth one hundred dollars, and large sums of money for medicine, to wit, the sum of fifty dollars, in endeavoring to cure his said cattle of said disease so as aforesaid communicated to his said cattle, and the plaintiff has sustained damages in consequence thereof in the sum of ten hundred and fifty dollars, for which he demands judgment against the defendant, together with the costs of this suit.

On May 17th, 1886, the railway company filed the following amended answer herein:

"1. That it denies each and every allegation, statement and averment therein contained.

"2. For further answer this defendant says, that said cattle were being transported by the defendant as a common carrier through the states of Missouri and Kansas into the state of Nebraska, for and under the orders and directions of the owners of said cattle; that while in the county of Brown, without fault of defendant, defendant's cars were derailed, and said cattle were taken from the cars of defendant by the owner of said cattle, and by him taken charge of, and he thereupon appointed agents to take charge of said cattle, who under his direction and under his authority drove said cattle to the next station; that all of the persons then in charge of said cattle were the agents and employes of the owner of said cattle, and were acting under his appointment and authority, and this defendant did not drive or permit or authorize to be driven into or through said county, any of said cattle. Wherefore, defendant demands judgment for costs."

On May 17, 1886, Finley filed his reply, denying every allegation contained in the answer inconsistent with the averments of the petition. Trial commenced May 17, 1886, before the court with a jury. The jury returned a general verdict for the plaintiff, and assessed his damages at eight hundred and eighty dollars. Subsequently the railway company filed its motion for judgment on the findings of fact, the general verdict to the contrary notwithstanding. This motion was overruled. On May 19, 1886, the defendant filed its motion for a new trial. This motion was also overruled. Thereupon the court rendered judgment upon the verdict of the jury in favor of the plaintiff and against the defendant for eight hundred and eighty dollars, and for all costs.

The railway company excepted, and brings the case here.

Judgment reversed and remanded.

Waggener, Martin & Orr, for plaintiff in error.

W. D. Webb, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The facts in this case as disclosed upon the trial are substantially as follows: On and prior to May 9, 1884, the Missouri Pacific Railway Company was running and operating a railroad from the city of St. Louis, Missouri, through the states of Missouri, Kansas, and Nebraska; on the 9th day of May, 1884, it was carrying on its road from Missouri through Kansas to Nebraska, from fifteen to eighteen cars of Texas cattle--one hundred head--which had been shipped by the owner over the railway, who was upon the train in which they were being transported. On said May 9, while the cattle were in transit through Brown county, in this state, three to five cars of the cattle were derailed and wrecked; many of the cattle were injured and killed, and it was necessary to remove the cattle from the train; the cattle could not be reloaded at the wreck without first building a corral and cattle-chute and obtaining additional cars; the wreck was of such a character as to block up the road for several hours and prevent the passage of trains; the cattle were driven from the wreck along the public highway to Hiawatha, about seven miles, where they were reloaded into cars and taken to Nebraska; Hiawatha was the next station on the line of railroad north of the wreck; Finley resided at the time two miles south and west of Hiawatha, upon a farm owned by him, a mile and a half from the Missouri Pacific Railway; as the cattle were being driven to Hiawatha, one of them escaped and got into his pasture; he saw the animal the same day among his cattle; he recognized the animal as one of the breed commonly called Texas, or Southern; he kept the animal, and permitted it to run with his other cattle for about two months; he had had considerable experience with cattle up to this time, as he had been in the stock and cattle business four or five years; he however did not discover any disease in the animal, and has since retained the animal in his possession. In July, after the cattle were driven from the wreck to Hiawatha, several of Finley's became diseased with splenic or Spanish fever; twelve head died of this disease, and their value was eight hundred and twenty dollars.

Finley brought this action against the railway company to recover the sum of ten hundred and fifty dollars. The jury returned a general verdict in his favor for eight hundred and eighty dollars, and judgment was entered thereon against the company. This action seems to have been brought and tried under the statute enacted for the protection of cattle against contagious diseases. (Laws of 11881, ch. 161; Laws of 1884, ch. 3.) The transactions complained of occurred in 1884, therefore prior to the legislation of 1885. (Laws of 1885, ch. 191, § 5.)

The first contention of the railway company is, that the statute referred to cannot apply, as the same tends to place an embargo upon interstate commerce, and Railway Co....