The Chicago v. Clonch

• Decision Date: 01 January 1896
• Docket Number: 48
• Court: Kansas Court of Appeals
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. C. C. CLONCH

43 P. 1140

2 Kan.App. 728

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. C. C. CLONCH

No. 48

Court of Appeals of Kansas, Northern Department, Eastern Division

January 1, 1896

Opinion Filed February 14, 1896.

MEMORANDUM.--Error from Jackson district court; ROBERT CROZIER, judge. Action by C. C. Clonch against The Chicago Rock Island and Pacific Railway Company for killing stock. Verdict for defendant. From an order granting a new trial defendant brings the case to this court. Modified. The opinion herein was filed February 14, 1896.

The statement of the case, as made by CLARK, J., is as follows:

This action was brought in the district court of Jackson county by C. C. Clonch, to recover from the Chicago, Rock Island &amp Pacific Railway Company the value of two mules, one mare, and two colts, which were killed by the defendant in the operation of its road near Streight Creek, a small station on defendant's line of road in said county. The particular acts of negligence which plaintiff alleged in his petition and upon which he based his right to recover damages, are, that the defendant had failed to inclose its right of way, at the place where it intersects a public highway, with a good and lawful fence, to prevent live stock from being on the track; and that those operating the train did not cause the whistle of the engine to be sounded 80 rods before reaching the highway, nor exercise any care to avoid the injury complained of; and that these animals, without the fault of plaintiff, entered the public highway and from thence upon the right of way, on the southeast quarter of section 7, township 6, range 16, being within the inclosed and improved farm of L. T. Smith, where they were struck by a passing engine and killed. The plaintiff established the fact that the track was not inclosed with a good and lawful fence where it leaves the highway in question. In fact, there was no controversy upon this point. The accident was supposed to have occurred about 4 o'clock in the morning of November 14, 1890. The record does not show that any one saw the animals after the evening of November 13, until the following morning, when they were discovered by the defendant's station agent, on the right of way north of the highway on the said southeast quarter of section 7, four of them being dead and the other one badly injured. The court sustained an objection to the introduction of any evidence upon the question as to whether or not the employes of the railway company observed the requirements of the statutes with reference to sounding the steam-whistle at least 80 rods from the crossing, to which ruling the plaintiff duly excepted. No attempt was made to show any other negligence in the management of the train.

The defendant's depot is located on the northwest quarter of section 18, township 6, range 16, in Jackson county, and its right of way and railroad track traverses diagonally that quarter-section, the northwest corner of the northeast quarter of the same section, and the southeast quarter of section 7, which joins section 18 on the north. Between these sections, 18 and 7, there is a duly established public highway 40 feet in width, which is also traversed by defendant's right of way and railroad track; the distance from the depot to a point where the railroad track crosses the highway is about 1,200 feet, and, in addition to the main track, the defendant had constructed a switch, or what is termed a "passing track," about 13 feet distant from the main track, and parallel thereto, extending from a point several feet southwest of the depot across the highway to a point 200 or 300 feet north of the south line of the said southeast quarter of section 7, where this passing track is joined to the main track; and 125 feet beyond that point was a cattle-guard to prevent live stock from getting upon the track and right of way. The railroad company introduced evidence tending to show that that part of the highway which was traversed by the right of way, the main track and passing track was a part of the depot- and switch-grounds of the company as located by it; that the depot was located at a suitable place for the accommodation of the public and for the management of the business of the defendant; that five trains passed at that station daily; that much of the local switching of cars is done there; that as many as five trains had been there at a time; that it was necessary, in order to properly discharge its duties to the public, in the management of its business, that the depot-grounds and switch-yards, including its passing track, should extend over and across the public highway, and that it could not construct and maintain a fence or cattle-guard on either side of the highway, across its right of way, without endangering the lives of its employes while engaged in doing the necessary switching of trains at that station. The jury returned a general verdict in favor of the defendant, and made the following special findings of fact:

"Was there anything in the lay of the land, or otherwise, to interfere with or prevent the defendant from the erection of cattle-guards or other barriers at the place where its road enters said land of Smith where the animals of the plaintiff went upon said right of way? Yes.

"Could the defendant have constructed and maintained a cattle-guard at the point where the railroad enters the south line of the land owned by Leonard T. Smith without thereby endangering the lives of its employees? No."

The plaintiff in due time filed his motion for a new trial, in which he alleged that the verdict was not sustained by sufficient evidence and was contrary to law, and that errors of law occurred at the trial to which the plaintiff duly excepted. The hearing of this motion was continued until the next term of court, and, pending the hearing, the plaintiff asked leave to amend his petition, which application was also continued until the next term, at which time both motions were allowed. The plaintiff then filed his amended petition, in which, after referring to all the allegations of the original petition, and making them a part of the amended petition, alleged in substance, "by way of conforming the said petition to the facts proved," that the highway, across which the track ran diagonally, existed long prior to the construction of the railway, and that the station limits, depot and tracks in the vicinity of the highway were established and constructed in disregard of the needs, convenience and safety of the public and to property, and were not justified by the exigencies of the railway service; "and that, by reason of the premises aforesaid, the live stock of the plaintiff going upon the said right of way as aforesaid without the plaintiff's fault were killed," etc.

The journal entry (omitting the caption) reads:

"This day this cause came on for hearing upon the motion filed by plaintiff to amend his petition herein, and also upon the motion of the plaintiff for a new trial, and the court, after hearing arguments of counsel, and being fully advised in the premises, grants leave to the plaintiff to file an amendment to his petition herein instanter, which is done; to which ruling and decision of the court the plaintiff at the time duly excepted; and, thereupon, the court sustained the application of the said plaintiff for a new trial herein, and set aside the verdict and findings of the jury originally rendered in this action, to which ruling and decision of the court the said defendant at the time duly excepted; and thereupon, for good cause shown, the said defendant is granted 40 days herefrom in which to make and serve upon the plaintiff herein a case-made for the supreme court, and this cause is continued until the next term of this court."

The defendant has brought the case here, complaining of the ruling of the court in allowing the plaintiff, after trial and after a verdict had been rendered, to file an amendment to his petition, and then granting a new trial.

Order...