The Chicago v. Green

• Citation: 46 P. 200,4 Kan.App. 133
• Decision Date: 01 June 1896
• Docket Number: 127
• Court: Court of Appeals of Kansas
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. AMAVA GREEN

46 P. 200

4 Kan.App. 133

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. AMAVA GREEN

No. 127

Court of Appeals of Kansas, Northern Department, Eastern Division

June 1, 1896

Opinion Filed September 9, 1896.

MEMORANDUM.-- Error from Wabaunsee district court; WILLIAM THOMSON, judge. Action by Amava Green against The Chicago Rock Island & Pacific Railway Company for killing a horse. Judgment for plaintiff. Defendant brings the case to this court. Affirmed. The opinion herein, filed September 9 1896, States the material facts.

Judgment affirmed.

M. A. Low, W. F. Evans, and J. C. Dolman, for plaintiff in error.

Sprague & Tracy, for defendant in error.

GILKESON P. J. All the Judges concurring.

OPINION

GILKESON, P. J.:

This action was brought by Amava Green against the Chicago, Rock Island & Pacific Railway Company in the district court of Wabaunsee county to recover damages for the killing of a horse belonging to the plaintiff. The allegations of the petition are, that

"The killing was the result of, and caused by, negligence of the defendant in the operation of its railroad, in that the agents and employees of the defendant, at the time of the killing, did not exercise due care and diligence in the operation of its engine and cars, and that the defendant did not exercise due care and diligence in having its track inclosed with a good and lawful fence, as required by statute."

The first allegation of negligence seems to have been abandoned, and the right to recover was based entirely on the alleged failure of the defendant to fence its track. The evidence establishes the following facts: That the horse in question was killed by the agents and employees of the defendant below at the time stated in the petition at a point about 800 feet west of the west switch limits of said railroad at Wabaunsee, Wabaunsee county; that the plaintiff was the owner of the horse; that a fair market value of the horse was $ 75; that a reasonable attorney's fee was $ 40; that a proper demand was made upon the defendant railroad company for the value of the horse before this action was commenced; that, at the place where the horse was upon the right of way of the railroad company, and for a quarter of a mile east and west of that point, there were no fences, cattle-guards or other barriers to prevent stock from going on to said railroad inclosing the right of way; that just before the horse was killed it came down the bank and on to the right of way from a point about 15 rods from the railway track west of a certain tool-house of the company, which is located on the right of way about a quarter of a mile northwest of the depot, and that the horse was struck and killed at a point west of the public crossing.

There are but two alleged errors assigned upon which the plaintiff in error relies for a reversal of the judgment: (1) "That the court erred in refusing to instruct the jury at the close of the testimony to return a verdict for the plaintiff in error." (2) "In overruling a motion for a new trial." Paragraph 1252, General Statutes of 1889, being section 1 of chapter 94, Laws of 1874, provides:

"Every railway company or corporation in this state, and every assignee or lessee of such company or corporation, shall be liable to pay the owner the full value of each any [and] every animal killed, and all damages to each and every animal wounded by the engine or cars on such railway, or in any other manner whatever in operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation, or the assignee or lessee thereof, or not."

Section 5 of the same act provides:

"That this act shall not apply to any railway company or corporation, or the assignee or lessee thereof, whose railroad is inclosed with a good and lawful fence to prevent such animals from being on said railroad.

Our supreme court, passing upon this statute, has said:

"There is no express exception to or limitation upon or modification of ally of the provisions of the foregoing sections by any other statute, none except such as is found in said section 5; and if there is any exception, limitation or modification of any of the foregoing sections, other than that contained in section 5, it must be such only as arises by implication or by judicial construction or interpretation. In other words, under chapter 94 of the statutes of 1874, and upon its face, a railway company is liable in all cases for injuries done to animals by the operation of its road, except where the railroad is...