4 Kan. App. 512 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
This action was brought before a justice of the peace in Hamilton county, Kansas, by Harry S. Crittenden against the railroad company, to recover the damages alleged to have been caused by the negligence of said company to a car-load of cattle shipped by said Crittenden over the road of said defendant from Raton, N. M., to Coolidge, Kan. Judgment was rendered against the railroad company, and it appealed to the district court. The case was tried in the district court on the original- bill of particulars filed before the justice of the peace. That part of the bill of particulars relating to the damages reads as follows:
“And the said plaintiff saith that said defendant, not regarding its duty in that behalf, did not use due and proper care in and about the handling and carrying and conveying of the cattle of said plaintiff, but so carelessly and negligently and improperly conducted itself in the carriage and conveyance of said cattle of the plaintiff that the car in which said cattle were loaded, and while standing on the side-track of defendant at the town of Raton, was shifted and placed in the train along with other cars by the switch-engine under the care and control of an engineer and servants of the said defendant; that said car in which .said cattle of plaintiff were loaded was thrown with great violence against the train of other cars then and there standing, whereby the cattle of said plain tiff were knocked down and a large number greatly injured and wounded, and while said cattle were in transit, and before reaching said town of Coolidge,*514 Kan., three of said cows and five of said calves died.. And-afterward, and after said cattle were unloaded at defendant’s stock-yards in Coolidge, Kan., four cows died from their wounds and injuries aforesaid, making in all of said cattle that died from said wounds and injuries seven cows and five calves, and the remainder of said cattle were greatly injured, to plaintiff’s damage in’the sum of $255.”
This is the only pleading filed in this case. Judgment was rendered in the district court against the railroad company for the sum of $255, and it brings the case here for review.
Plaintiff in error contends that the court erred in the admission of any testimony as to how the train was handled while en route — that the only injuries for which the plaintiff below claimed damages were occasioned by the manner in which the car was handled at Raton. We are of the opinion that the liberal interpretation given to a bill of particulars would permit the plaintiff below to prove any negligence on the part of the railroad company while the cattle were in its possession which caused the damages complained of.
During the trial of this action in the district court the railroad company introduced in evidence a written shipping contract signed by Crittenden, which contained the following clause :
”6. And for the consideration before mentioned said party of the second part further agrees, that as a condition precedent to his right to recover ahy damages for loss or injury to said stock he will give notice in writing of his claim therefor to some officer of said party of the first part or its nearest station-agent before said stock is removed from its place of destination above mentioned, or from the place of the delivery of the same by said party of the second part, and before said stock is mingled with other stock.”
The judgment of the district court is reversed, and the case remanded for a new trial.