Shoemaker v. The St. Louis & San Francisco Railway Company

• Decision Date: 01 July 1883
• Court: Kansas Supreme Court
• Parties: C. H. SHOEMAKER v. THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY

2 P. 517

30 Kan. 359

C. H. SHOEMAKER v. THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY

Supreme Court of Kansas

July 1, 1883

Error from Greenwood District Court.

AT the December Term, 1882, of the district court, the defendant Railway Company had judgment against plaintiff Shoemaker, who brings the case to this court. The opinion states the facts.

Judgment rendered and cause remanded.

Hamilton Ellis, and Scott & Lynn, for plaintiff in error.

S. S Kirpatrick, and John O'Day, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The petition of the plaintiff contains three counts. The first alleges, inter alia, that the railway company, by its agents and employes, changed and altered the course and channel of the stream fed by surface-water, known as "Salt creek," running through plaintiff's lands, and made a new channel for said stream of water, thereby forcing the water of the stream from its usual channel into a ditch made by the company, and from thence it ran upon and overflowed cultivated fields of the plaintiff, to his damage in the sum of $ 150. The second count alleges that the railway company, in constructing its road through the premises described in the petition, went outside of its right-of-way upon the lands of the plaintiff, and removed therefrom earth, stone and gravel, and appropriated the same in the construction of its road, to the damage of the plaintiff in the sum of $ 50. The third count alleges the destruction of about fifty rods of plaintiff's fence by fire escaping in a negligent manner from the engines of the company.

As the jury found for the company upon this count on the facts submitted, and as no complaint is made thereof, the matters therein alleged are not before this court for consideration. The jury found a general verdict for the plaintiff on the first and second counts in the petition, and assessed his damage at $ 60 on each count, being a total of $ 120. The jury returned with their general verdict fifty-nine special findings of fact. The defendant filed a motion for judgment on the special findings, which motion was sustained, and judgment rendered against plaintiff for all costs.

The question submitted to this court is, whether the district court erred in rendering judgment on the special findings for the railway company and against the plaintiff. It would be superfluous to recite the special findings, and all...