White River Railway Co. v. Hamilton

• Decision Date: 22 July 1905
• Citation: 88 S.W. 978,76 Ark. 333
• Parties: WHITE RIVER RAILWAY COMPANY v. HAMILTON
• Court: Arkansas Supreme Court

88 S.W. 978

76 Ark. 333

WHITE RIVER RAILWAY COMPANY v. HAMILTON

Supreme Court of Arkansas

July 22, 1905

Appeal from Baxter Circuit Court, JOHN W. MEEKS, Judge.

Reversed.

Thomas Hamilton and G. E. Cunningham jointly sued the White River Railway Company and George C. Smith, a contractor in the employ of such company, alleging that Cunningham owned 120 acres, and sold defendant company a right of way 100 feet wide over and across same; that defendant company contracted to rebuild, replace and keep up all fences in and over said right of way, so as to protect the crops; that, in violation of said contract, defendants failed to replace said fences and permitted stock to enter the fields and destroy the crops, to the value of $ 300.

The answer denied every allegation in the complaint.

At plaintiff's request, the court charged the jury as follows:

"1. This is an action by the plaintiffs for damages alleged to have been caused by the destruction of the crop raised by the plaintiff Thos. Hamilton on the lands of the plaintiff G. E. Cunningham. If you find from the evidence that the plaintiff Thos. Hamilton planted and cultivated a crop on the lands of the plaintiff G. E. Cunningham described in plaintiff's complaint, during the farming season of the year 1902, and that the defendants, or either of them, caused the destruction of said crop or any part thereof by breaking or throwing down the plaintiffs' fences, whereby the stock broke in and destroyed the same you will find for the plaintiffs, and assess their damages at the value of the crop so destroyed, or such part thereof as was destroyed.

"2. If you find from the evidence that the defendant White River Railway Company, in accepting a deed to its right of way through the lands of the plaintiff C. E Cunningham, agreed to fence its said right of way, and that in consequence of its failure to fence its said right of way the crop of the plaintiff was left exposed to the inroads of stock, and thereby damaged or destroyed you will find for the plaintiffs against both of the defendants, and assess the damages of the plaintiffs at the value of that part of said crop so destroyed.

The court also, of its own motion, charged the jury:

"If you find from the evidence that the plaintiffs erected a fence around the crop mentioned in plaintiffs' complaint sufficient to protect the same and that the defendants, or either of them, or their employees, broke or threw down said fence, whereby the plaintiffs' crop was destroyed by stock, then you will find for the plaintiffs the value of the crop so destroyed, or so much thereof as you find was destroyed in consequence of such throwing down or breaking of said fence."

A verdict was returned for plaintiffs, from which the defendant railway company appealed.

Trial reversed and remanded.

B. S. Johnson, for appellant.

There is no evidence to sustain an action growing out of a breach of contract. 54 Ark. 426; 53 Ark. 131; 47 Ark. 334; 58 Ark. 503; 54 Ark. 424.

Thomas Hamilton, for appellees.

If there was a misjoinder of causes of actions and parties, the same was barred by not filing a motion to compel an election. 48 Ark. 424. It could not be raised by demurrer. 43 Ark. 230; 44 Ark. 202. To reconstruct...