Prickett v. Atchison

• Decision Date: 09 July 1885
• Court: Kansas Supreme Court
• Parties: U. O. PRICKETT v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

7 P. 611

33 Kan. 748

U. O. PRICKETT v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

Supreme Court of Kansas

July 9, 1885

Error from Chase District Court.

ACTION by Prickett against The Railroad Company, to recover the value of his cow, killed by defendant's freight train. Trial at the April Term, 1884, and judgment for defendant for costs against the plaintiff. He brings the case here. The facts are stated in the opinion.

Judgment reversed and cause remanded for a new trial.

Madden Bros., for plaintiff in error.

A. A Hurd, C N. Sterry, and Robert Dunlap, for defendant in error George W. McCrary, general counsel.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This action was brought by U. O. Prickett to recover the value of his cow, which was killed by a passing freight train of the defendant, near to the railroad station at Elmdale. The cow was struck and killed not far from the end of the siding which is used in connection with the station, and is about 2,000 feet long. The plaintiff alleged that the cow was killed through the negligence of the defendant in operating its train, and also in failing to inclose its thick with a lawful fence. The jury returned a verdict in favor of the railroad company, and the plaintiff is here alleging error.

The principal objection made, is against the charge of the court. The fifth instruction was as follows:

"If you should find from all the evidence in this case that the defendant had a station at Elmdale at the time this cow was killed, which was used by the public as a railroad station for receiving and sending away freight, and for getting on and off defendant's trains, and that it was necessary for defendant's business with the public that the defendant should have a side track at such station, and that it did have a side track and such station at said time, and that this side track at such station was crossed by one or more public roads which the public traveled over; and if you should further find that such side track was not longer than it was necessary for it to be on account of the business transacted at said station by the defendant; and if you should further find that; no portion of said side track could be inclosed by a fence without cattle-guards being built across such side track; and if you should further find that owing to the character of the business (tone at said station by the defendant on such side track, that cattle-guards could not be built across any part of such side track without endangering the lives or limbs of such of defendant's employees as might from time to time be required to use such side track in the operation of defendant's trains and cars thereon, then and in such case you are instructed that defendant was not required to inclose said side track or any portion of it with a fence, even although such side track might occupy in length a greater strip of land than would be reasonably necessary for the use of the defendant as station grounds. And you are further instructed, that in such case if the plaintiffs cow was killed at such station within the limits occupied by such side track, that then and in such case the plaintiff cannot recover in this action because of any failure of the defendant to inclose such side track with a lawful fence."

The exemption stated in the latter part of the instruction, relieving the railroad company from fencing the track, is too broad, and cannot be upheld. The statute imposing upon railroad companies the duty of fencing their tracks in terms contains no exceptions. There is therefore no exemption from the duty imposed by the terms of the statute except such as may be by implication from public necessity or the superior obligation of the railroad company to the public under other statutes. (Railroad Co. v. Jones, 20 Kan. 527; U. P. Rty. Co. v. Dyehe, 28 id. 202; A. T. & S. F. Rld. Co. v. Sitaft, ante, p. 521; same ease, 6 P. 908.)

In the latter case Mr. Justice VALENTINE stated the rule under the authorities to be:

"That railroads are not absolved from complying *with...