The Kansas City v. Furst

• Decision Date: 01 March 1896
• Docket Number: 93
• Court: Kansas Court of Appeals
• Parties: THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY v. T. E. FURST

45 P. 128

3 Kan.App. 265

THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY v. T. E. FURST

No. 93

Court of Appeals of Kansas, Southern Department, Eastern Division

March 1, 1896

Opinion Filed May 8, 1896.

MEMORANDUM.--Error from Bourbon district court; J. S. WEST judge. Action by T. E. Furst against The Kansas City, Fort Scott & Memphis Railroad Company to recover for stock killed. Judgment for plaintiff. Defendant brings the case to this court. Reversed. The opinion herein, filed May 8, 1896 states the material facts.

Judgment reversed and case remanded.

Wallace Pratt, and Chas. W. Blair, for plaintiff in error.

W. R. Biddle, for defendant in error.

COLE J. All the Judges concurring.

OPINION

COLE, J.:

This action was commenced before a justice of the peace in the city of Fort Scott, Bourbon county, by T. E. Furst, to recover damages arising out of the alleged killing of one black mare and the injury to one colt by the railroad company. The bill of particulars filed in the cause set up the killing of the mare and injury to the colt in separate counts, or as separate causes of action. It alleged, first, that the mare was killed by the negligence and carelessness of the defendant company in the operating of its road, and then stated, for the second cause of action, that the defendant had been guilty of negligently and carelessly injuring the colt in question. There was the further statement in this connection to the effect that the road of the defendant company was not properly inclosed and fenced, and that the gate, through which stock got upon the track, was carelessly and negligently constructed. This cause having been appealed to the district court, a trial was had, resulting in a verdict and judgment for the plaintiff below, from which the railroad company brings the case here for review.

Several errors are complained of, but we shall consider only those necessary to the determination of this case. The court instructed the jury upon the theory that the bill of particulars in this case stated two separate and distinct causes of action, one founded upon the negligence of the company in the operation of its road, and the other founded upon the failure of the company properly to construct a gate leading to a private crossing connecting one portion of the plaintiff's farm with another. The first of these causes of action had relation to the killing of the mare, and the second to the injury to the colt. With regard to the first cause of action, the following instruction was given:

"In arriving at your verdict on this first cause of action, you may consider, only on the question of negligence, what the evidence proves as to the operation of the train. The evidence introduced as to whether the railroad was fenced, or a gate in such fence was defective in construction, or had become defective since its construction, should not be considered by you."

Now, it is clear under this instruction that the only evidence the jury were to consider in determining whether the railroad company was liable for the killing of the mare was such evidence as related to the manner of the running of the train which it was claimed killed the animal, and so far as the trial of this case was concerned, it was the duty of the jury to consider the instructions as given by the court as the whole law in the case. As was said by HORTON, C. J., in the case of U. P. Rly. Co. v. Hutchinson, 40 Kan. 51, 19 P. 312, "Whether the instruction is...