The Wichita & Western Railway Company v. Hart

• Decision Date: 01 January 1898
• Docket Number: 262
• Citation: 51 P. 933,7 Kan.App. 550
• Court: Kansas Court of Appeals
• Parties: THE WICHITA & WESTERN RAILWAY COMPANY v. HENRY HART

51 P. 933

7 Kan.App. 550

THE WICHITA & WESTERN RAILWAY COMPANY v. HENRY HART

No. 262

Court of Appeals of Kansas, Southern Department, Central Division

January 1, 1898

Opinion Filed January 14, 1898.

Error from Kingman district court; W. O. BASHORE, judge. Affirmed.

Judgment affirmed.

Fred. W. Bentley, and J. W. Gleed, for plaintiff in error.

W. M Wallace, for defendant in error.

OPINION

MILTON, J.:

Defendant in error, as plaintiff, recovered a judgment based on the verdict of a jury, in the sum of $ 139, as damages and attorney's fees, in the district court of Kingman county against the Wichita & Western Railway Company. The plaintiff's bill of particulars alleged that a four-year-old filly belonging to him, and valued at ninety-nine dollars, had been killed by a train of cars of the railway company, and that the damage had occurred as a result of the company's failure to maintain a sufficient gate at a private crossing over the railroad track where it passed through said plaintiff's farm, the animal in question having escaped from an enclosed field and entered upon the right of way through the said gate.

The jury made a number of special findings, one being that the gate was insufficient, and another that the damage resulted from the failure of the defendant company to maintain a sufficient gate. These findings are supported by the evidence of plaintiff, which is directly contradicted by the evidence on behalf of the defendant. The theory of the plaintiff below was that the sliding gate, which was made of pine boards and placed between two posts at each end, had been gradually worked back by a very high wind, in the night-time sufficiently to allow four horses, including the one killed, to go through it from the pasture to the right of way of the railroad. His statement that he had closed the gate in the evening preceding the death of the animal was not disputed. The evidence of the railway company tended to prove that the gate would have been broken rather than moved by a strong wind, and that it was not broken by the wind that night. The jury on this point made the following findings:

"27. Ques. When the gate was closed, with the west end resting on the ground, could the same be blown open by a strong wind? Ans. Yes.

"28. Q. Would not the gate be broken by the wind before it would be blown open? A. No."

The jury also found that a demand had been duly made upon the company prior to the commencement of the action for the amount of damage claimed.

It seems that Hart had brought three suits before a justice of the peace, each involving the killing of different animals by the railway company, and that the company had carried all of the cases into the district court by appeal. While these cases were pending the company moved to consolidate them. In support of the motion, the three bills of particulars were introduced, and Hart admitted the identity of plaintiff and defendant in the three cases. The motion was overruled, defendant excepting. One of the cases was then tried, resulting in a judgment for Hart. The defendant thereupon paid this judgment, and then moved the court to dismiss each of the other actions, for the reasons stated in the motion to consolidate. This motion was also overruled. Plaintiff in error earnestly contends that the court erred in overruling these motions.

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