The Atchison v. Riggs
| Decision Date | 01 January 1884 |
| Citation | 31 Kan. 622,3 P. 305 |
| Court | Kansas Supreme Court |
| Parties | THE ATCHISON, TOPEKA, & SANTA FE RAILROAD COMPANY v. JAMES D. RIGGS |
Error from Marion District Court.
THE facts appear in the opinion. At the May Term,1883, the court rendered a judgment for plaintiff Riggs on the first cause of action stated in his petition, and a judgment for the defendant Railroad Company on the second cause of action set forth therein. The defendant is here complaining of the former judgment, and the plaintiff, in his cross-petition in error, complains of the latter judgment.
Judgment affirmed.
Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.
L. F Keller, for defendant in error.
OPINION
The Atchison, Topeka & Santa Fe railroad company has filed a petition in error in this court to reverse a judgment of the district court of Marion county, rendered against the railroad company and in favor of James D. Riggs, and Riggs has filed a cross-petition in error to reverse a judgment rendered by the same court in the same case in favor of the railroad company and against Riggs. Riggs was the plaintiff in the court below, and in his petition below set forth two causes of action: First, A cause of action for causing the death of his cow by the railroad company's failing to fence its road, as required by chapter 94 of the Laws of 1874, whereby the cow strayed upon the railroad track, where she was killed through the negligence of the railroad company in operating its road; and second, a cause of action for negligently permitting fire to escape from one of the company's engines, whereby forty tons of hay belonging to the plaintiff were destroyed. The defense was, first, a general denial; second, that the cow was killed at a time when she was running at large, in violation of the county "herd law" of 1872, which was then in force in Marion county, where the cow was killed; and third, that the cow was killed on the railroad track where it crosses a public highway. A trial was had before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant on both causes of action, and also made certain special findings of fact; and upon this verdict and these special findings of fact, the court below rendered judgment in favor of the plaintiff on the first cause of action, and in favor of the defendant on the second cause of action; and the defendant, as plaintiff in error, now complains of the judgment rendered on the first cause of action, and the plaintiff below, defendant in error, complains of the judgment rendered on the second cause of action.
As to the first cause of action, it appears from the evidence that during all the time while the various transactions were occurring out of which the plaintiff's cause of action is supposed to have arisen, the defendant's railroad was located upon and passed through the plaintiff's land, a portion of which road was fenced, and a portion was not fenced, though all of it could have been fenced; the plaintiff's cattle were kept and pastured on his own land, from which they strayed, through a place where the railroad was not fenced, upon the company's premises, where, immediately afterward, the plaintiff's cow was killed by a passing train. It was also admitted that the county "herd law" of 1872, (Laws of 1872, ch. 193,) as well as the railroad stock law of 1874, (Laws of 1874, ch. 94,) was in force in Marion county, Kansas, where the cow was killed. These are not all the facts of the case, but these we think are all that are necessary to be stated for the purposes of the question which we now propose to discuss. Under these facts, is the railroad company liable? That the railroad company was bound to fence its road, and for its failure to do so is liable for the killing of the plaintiff's cow, there can certainly be no doubt, unless the plaintiff, by his own wrong or negligence, contributed to the injury. (See "Railroad Stock Law" of 1874, and the numerous decisions of this court made under such stock law.) But the railroad company claims that the plaintiff did commit wrong and was guilty of negligence in permitting his cattle to "run at large" in his own field adjoining the railroad, and in violation of the "herd law" of 1872, which precludes, as the company claims, all right on the part of the plaintiff to recover from the railroad company for the killing of his cow. Now it is not claimed that the plaintiff is precluded from his right to recover merely because his cattle were technically trespassing upon the company's premises, or upon the land from which they strayed when they entered upon the company's premises; for this court has repeatedly decided that the owner of cattle, not running at large in violation of some positive statute, but rightfully running at large under the statutes, and merely straying from land in which the owner of the cattle had no interest, and upon which the cattle were technically trespassers, to and upon the unfenced premises of a railroad company, in which the owner of the cattle had no interest, and upon which the cattle were technically trespassers, may recover from the railroad company for any injuries done by the company to the plaintiff's cattle in the operation of its road. See the numerous decisions made by this court upon this subject. There are also decisions of other courts, going even beyond this: Railway Co. v. Howard, decided by the supreme court of Ohio, April 24, 1883, 11 Am. & Eng. Rld. Cases 488; Toledo &c. Rly. Co. v. Cary, 37 Ind. 172; Keliher v. Conn. River Rld. Co., 107 Mass. 411; McCall v. Chamberlain, 13 Wis. 637; Dunkirk &c. Rld. Co. v. Mead, 90 Pa. 454; same case, 1 Am. & Eng. Rld. Cases, 166. Besides, in the present case the cattle were not trespassers in any sense upon the land of the plaintiff, from which they strayed upon the premises of the railroad company, and they could hardly be called trespassers upon the premises of the railroad company, for the fee of such premises was in the plaintiff, and not in the railroad company, and he had a right to use such premises under all circumstances and in any manner he chose, provided his use of the same would not interfere with the rightful and proper use of the same by the railroad company. He would have a right to drive his cattle across the railroad track, from one portion of his land to the other, or even to pasture his cattle upon the railroad track, provided he did not interfere with the rightful use of the premises by the railroad company.
The railroad company claims that the adoption of the "herd law" of 1872, in Marion county, where the plaintiff's cow was killed, virtually put the common law in force; and that under the common law the owner of the cattle must take care of the same, and not permit them to run at large or to trespass upon the property of others. Now conceding that this is true, and we think it is, we do not think that it will prevent the plaintiff from recovering in the present case. The plaintiff's cow was rightfully upon the plaintiff's own land, and was not trespassing upon the property of any person, and she passed directly from the plaintiff's own land upon the premises occupied by the railroad company--premises to which the plaintiff held the fee-simple title, and in which the railroad company held nothing but an easement--and she was enabled to pass upon such railroad premises wholly from the fault of the railroad company itself in not inclosing its road with a good and sufficient fence, and not from any fault of the plaintiff.
Under such circumstances, we think there is no decision in the United States holding that the plaintiff is not entitled to recover; while there are numerous decisions in several of the states, made under similar circumstances, holding that the plaintiff may recover. .)
These cases were decided in states where the common law is in force, except as modified by statutory or constitutional provisions; and in several of such states the common law with reference to fences, and stock running at large, is in force except as modified by the particular statutory provision requiring railroad companies to fence their roads. Hence it would seem that these decisions necessarily have close application to the present case. The railroad company also cites a long list of authorities where it was held that the plaintiff was not entitled to recover under circumstances which the railroad company claims are similar to the circumstances in the present case...
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... ... In that case the company was held liable. It is true this particular question was not then discussed or specially considered, so that the case is not a direct authority. See, also, Railroad Co. v. Wilson, 28 Kan. 637; Railroad Co. v. Riggs, ante, [31 Kan. 622] [3 P. 305]. It is true that authorities in other states are conflicting on this question. See the various authorities cited in briefs of opposing counsel. We think in principle, however, it is more just and fair that where the owner of stock is without fault, and has taken ... ...
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