Schulman v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 28 January 1939
• Docket Number: 34067.
• Citation: 86 P.2d 590,149 Kan. 114
• Parties: SCHULMAN v. ATCHISON, T. & S. F. RY. CO.
• Court: Kansas Supreme Court

86 P.2d 590

149 Kan. 114

SCHULMAN v. ATCHISON, T. & S. F. RY. CO.

NO. 34067.

Supreme Court of Kansas

January 28, 1939

Syllabus by the Court.

In action against railroad for death of mules which passed from road through open gateway in railroad's right of way fence onto right of way where they were killed, stipulation of facts showed road to be "public road." Gen.St.1935, 66-295 et seq.

That farmer habitually left gate in railroad's right of way fence open did not relieve railroad of duty or liability as respects death of mules who strayed from public road adjacent to right of way onto right of way and were killed. Gen.St.1935, 66-295 et seq.

Where mules strayed from public road adjacent to right of way through gate in right of way fence which was habitually left open by farmer and were killed, railroad was liable for death of mules. Gen.St.1935, 66-295 et seq.

Plaintiff who recovered judgment against railroad for mules killed on right of way was entitled to $100 attorney's fee. Gen.St.1935, 66-298.

In an action for damages against a railway company for killing plaintiff's mules which had passed from a public road on to the railway right of way through an open gateway in defendant's right of way fence, the record examined, and held: (1) Plaintiff's cause of action was established by the stipulations of fact; and (2) plaintiff was entitled to an attorney's fee under the statute when judgment was entered in his behalf.

Appeal from District Court, Finney County; Fred J. Evans, Judge.

Action by S. Schulman against the Atchison, Topeka & Santa Fé Railway Company to recover for mules killed on defendant's right of way. Judgment for plaintiff, and defendant appeals; plaintiff cross-appealing.

Modified and affirmed.

Bruce Hurd, C. J. Putt, and Robert M. Clark, all of Topeka, and A M. Fleming, of Garden City, for appellant.

A Schulman and Ray H. Calihan, both of Garden City, for appellee.

DAWSON Chief Justice.

This was a stock-killing damage suit under the statute, G.S.1935 66-295 et seq. A jury was waived; most of the pertinent facts were agreed to; defendant's section foreman supplied some additional facts by his oral testimony; and the trial court gave judgment for plaintiff.

Defendant appeals, complaining of the trial court's ruling on its demurrer and of the judgment. To determine the merit of these points, the facts may be summarized thus:

The defendant's railway runs east and west through Finney county. The right of way is fenced on both sides. Plaintiff's farm is located at some unstated distance south of the railway. There was a pasture on that farm enclosed with a fence of the legal standard of sufficiency. Skirting that pasture on the west was a public road running north to the railway. Bordering and paralleling the railway was a road running east on the south side of the railway. A mile or two east of the intersection of the north and south public road and the east and west road was a farm called the Oxley farm, part of which lay north of the railway and part south of it. For the convenience of the Oxley farm and its tenant the railway company constructed a private crossing over its railway track and maintained two gates, one in its fence bounding the north side of the right of way and the other bounding its south side.

For two or three years past, the tenant on the Oxley farm had been careless about the gates at this private farm crossing. Defendant's section foreman testified that during certain portions of the year, when Wentz, the Oxley tenant, had livestock in that part of the farm lying south of the railway, the south gate at the farm crossing was left open much of the time. His testimony, in part, reads: "I pass that gate on an average of about once a week. Some weeks I pass two or three times. I know this because under the rules I am required to and it is my custom to inspect the whole of my section at least once a week. I found this gate, the one south of this private crossing, open practically every time I went by except when Mr. Wentz had stock south of the track. It was our custom to always shut these gates when they were found open unless somebody was close by using them at the time. I closed this gate an average of once a week for the last two years."

In the agreed statement of facts the following also appears: "That for three years prior to said 5th day of December, 1936, and up to the time of the accident involved in the petition, said south gate was left open and never closed except for very small periods of time at different intervals, which periods of time in the aggregate covered about one-sixth of the entire three years or about six months in all; That for a period of one year prior to said 5th day of December, 1936, said gate remained opened except for the period of a few days the fall of 1936."

It is defendant's contention that the facts of this case bring it within the rule announced in Fritzel v. Kansas City, K. V. & W. R. Co., 118 Kan. 447, 235 P. 852. In that case, however, the plaintiff's cow, which defendant's train killed, had first strayed into the premises of a neighbor, Ed Schaake, and found her way into the railway right of way through an open gateway from which Schaake had carried off the gate for his own convenience. In the Fritzel Case it was held, quite properly, that plaintiff's cow was a trespasser on Schaake's farm, and when it strayed on to the railway right of way through an open gateway from that farm, its owner was no more entitled to recover from the railway company than Schaake himself would have been if one of his cows had been killed under the same circumstances.

The only basis for comparing the Fritzel Case with the present is the assumption that the road which ran east and west on the south side of the railway track was not a public road but merely a way of sufferance through the two parts of the Oxley...