The Atchison v. Shaft

• Decision Date: 01 January 1885
• Citation: 33 Kan. 521,6 P. 908
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTE FE RAILROAD COMPANY v. CLAY SHAFT

6 P. 908

33 Kan. 521

THE ATCHISON, TOPEKA & SANTE FE RAILROAD COMPANY v. CLAY SHAFT

Supreme Court of Kansas

January 1, 1885

Error from Chase District Court.

ACTION brought by Clay Shaft against The Atchison, Topeka &amp Santa Fe Railroad Company, to recover damages for the killing of a steer belonging to the plaintiff. The plaintiff alleged in his petition, among other things, that the steer in question, without fault on the part of the plaintiff, strayed in and upon the track and ground occupied by the railroad company at a point west of Crawford. station, in the county of Chase, where such track ought to have been, but was not inclosed with a good and lawful fence, and that the defendant, by its agents and servants, not regarding its duties in that respect, carelessly and negligently ran and managed its locomotive and cars, so that the same ran against and over the said steer, and wounded and killed the same. The plaintiff claimed $ 55 damages, and $ 30 as attorney's fees. The defendant denied generally, and also set up contributory negligence on the part of the plaintiff. The case was tried by the court without a jury, and the court made special findings of fact and conclusions of law as follows:

"At Crawford station, in Chase county, Kansas, the defendant owns a strip of land 250 feet wide and 2,400 feet long, which it uses as its station grounds at that point. At each end of this strip of ground there is a cattle-guard, over which the main track of defendant's road passes. These cattle-guards are connected on each side with fences running across the end of this strip of ground. Beyond each end of this strip of ground is the defendant's right-of-way, 100 feet wide, over which the main track of defendant's railroad passes as it leaves this strip of land. About 800 feet from the east end of this strip used as station grounds a public highway crosses this strip of land, north and south in an angling direction. Two hundred and seventy-five feet from the west end of this strip a switch leaves the main line and thence runs east (north of the main line) 1,400 feet, at which point it crosses the public highway and again joins the main track 600 feet east of the public highway. Six hundred feet from the east end of this strip, on the north of the switch and main track, the defendant has its stock-yards at said station, built upon this strip. Between the switch and main track is defendant's depot building at this station which is about 400 feet west of the public highway crossing this strip. One hundred feet west of the depot building is the water-closet of the defendant, at this station; 75 feet west from the water-closet is the water-tank; 600 feet west from the point where the public highway crosses the south line of this strip is defendant's well upon this strip, from which it gets its water to supply its water-tank. About 1,200 feet west from the point where the public highway crosses the south line of this strip is the section-house of defendant, in which its section-men live; the tool-house belonging to defendant at this station is on this strip north of the main line and about 100 feet east of the west end of this strip; this tool-house is where the section-men living in the section-house keep their tools, and to it they have to have constant access. The switch on this strip is daily used for switching purposes, and for trains to side-track upon. The only way in which grain is loaded at this station is by loading the same from wagons into a car; and when grain is loaded from a wagon into a car, the car is placed upon this switch, and frequently while grain is so being loaded such car has to be moved from point to point along a portion of this switch, to keep out of the way of trains switching and side-tracking at this point. There is considerable hay, corn and wheat loaded at this station from wagons into cars. From the point where the west line of the public highway crosses the north line of this switch, a lawful fence has been built by the defendant running west along the north line of this strip to the west end thereof, and across the west end in connection with the cattle-guard there, and thence east along the south line of said strip, around the section-house, for a distance of about 1,100 feet. Outside of this fence there is no fence of any kind around this strip of land; and immediately joining the south line of this strip from the east end of the fence thereon to the east end thereof is the village of Crawford, which has been platted; and one of the laid-out streets of said village runs parallel with and adjoining the south line of this strip from the end of the fence on the south side to the east end of the same. The only way the public have the right to ingress and egress to and from the station building at this station is by entering the station grounds upon the public highway which crosses the same, or from the street in the village of Crawford, which adjoins and runs parallel with the south line of defendant's strip. The defendant is operating a railroad through Chase county, Kansas, and this station is upon such line. The animal described in plaintiff's petition was allowed by the plaintiff to run at large upon uninclosed land north of the station at Crawford; it got upon the station grounds by coming down the public highway to the point where it crosses this strip of land used as station grounds, and from there it wandered west upon the said strip of ground so used as station grounds to a point about 75 feet east of the west end of said strip of ground, being a point about 1,550 feet west of where the public highway crosses said strip, and about 200 feet west of the west end of the switch, and 1,200 feet west of the center of the depot building, although it could have crossed the station grounds and passed along on the south of the same to some point and then have entered upon such station grounds; and there, as this animal, with a number of others, was feeding south of the track; it became frightened by the noise of the approaching train, and jumped upon the track in front of such train, so close to the train that it was impossible to prevent the train from striking it, and it was there struck by the train and killed. Owing to the fence around the west end of this strip there was formed a pocket at the west end, which being open to the east to the public highway, and from the south to the end of the south fence made a sort of trap which tended to prevent animals getting therein from escaping from approaching trains. The defendant in so constructing its fence at the west end of this strip as to form this pocket, and leaving the access thereto as above stated, was negligent. Such negligence was the direct cause of the death of said animal. Said animal was of the value of $ 45. There could not, be any fence placed across said strip of land at any point between the public highway and the station building which would prevent animals from getting from the highway to the station grounds, except the same be built across the track and switch by cattle-guards, and except there should be gates put therein for the ingress and egress of the public and the defendant's employes to and from said station-house. Cattle-guards cannot be placed across any railroad track upon which switching has to be done with safety to the employes who have to do such switching. The part of this strip of land upon which the animal was killed was not necessary for the use of defendant as part of its station ground. From the point where the main track left this strip of ground at the west end to the point where the switch left the same east of the west end there could not have been any cattle-guards made across said track, with any safety to such employes of the defendant as would from time to time have to uncouple or couple cars on the main line west of the west end of the switch, preparatory to placing such cars or trains upon such switch from the west. Crawford station was a station on the defendant's road, used by it as a station for the public to get on and off its cars at, and to load freight on its cars and to take freight off from its cars. The switch there was used for standing cars upon which were to be loaded and unloaded for the public, as well as for passing trains."

As a conclusion of law upon the foregoing facts, the court found that "the defendant is liable to the plaintiff for the value of said animal as found, and that judgment be rendered for the same, and for costs of this action, against the defendant."

The defendant moved for judgment upon the foregoing findings of fact, which motion was overruled by the court, and judgment was then rendered in favor of the plaintiff and against the defendant for the sum of $ 45, damages, and costs of suit, taxed at $ 22.86. The defendant brings the case to this court.

Judgment affirmed.

A. A. Hurd, C. N. Sterry, and Robert Dunlap, for plaintiff in error; Geo. W. McCrary, general counsel.

Young & Kelley, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by Clay Shaft against the Atchison, Topeka & Santa Fe Railroad Company, in the district court of Chase county, to recover damages for the killing of a steer belonging to the plaintiff. The allegations of the plaintiff's petition were such that he might have recovered either under chapter 94 of the statutes of 1874, because of a want of a legal fence inclosing the defendant's railroad, (Comp. Laws of 1879, pp. 784, 785, PP 4915 to 4919,) or under chapter 93 of the Laws of 1870, for negligently killing the plaintiff's animal, (Comp. Laws of 1879, p. 784, P 4913, or under the rules of the common law for negligently killing the same.

It is admitted in the present...