Atchison, Topeka & Santa Fé Railroad v. Davis, 31 Kan. 645

31 Kan. 645 | Kan. | 1884

The opinion of the court was delivered by

Brewer, J.;

This was an action brought by defendant in error, plaintiff below, to recover the value of a colt killed by being struck by a passing train on defendant’s railroad. The action was commenced before a justice of the peace, and after judgment, appealed to the district court, where the case was tried before a jury. The case was tried on the bill of particulars filed before the justice, and without any new or additional pleadings. The verdict and the judgment were in favor of the plaintiff, and defendant brings the case to this court. The bill of particulars alleged that the colt was killed through the negligence of defendant, and also that the road was not fenced at the place of killing. The latter charge was not supported by the testimony and was disregarded by the jury. The case was therefore disposed of upon the theory that the defendant was guilty of actual negligence in killing the colt.

Among the undisputed facts, are these: The colt was kept in the fair grounds just west of Emporia, in Lyon county. Between the fair grounds and the railroad track was a fence, in which about midway was a gate used principally during fair time by persons passing backward and forward from trains to the fair grounds. At times when the fair was not being held, the gate was occasionally left open by tramps passing up and down the railroad track, and other persons. During the night prior to the injury complained of, in some undiscovered way, the gate was opened, and left open. Early in the morning, the colt with three or four others which were running loose in the fair grounds passed through this open gate, and upon the defendant’s right-of-way. While on the right-of-way, an emigrant train came from the west. The other colts kept off the track, but this one went upon it and ran eastward toward the city of Emporia, followed by the train until near the east line of the fair grounds, when its course being stopped by an open bridge it was struck by the train and killed. No negligence can be imputed to the defendant in the manner in which the colt escaped from the fair grounds and went upon the right-of-way. The question therefore was, whether there was negligence in the management of the train.

The jury answered this question in the affirmative, and while the testimony was not absolutely conclusive, there was ample to warrant the answer. It seems probable that a little effort and care on the part of the persons in charge of the train might have avoided the accident, so that really the only substantial question arises on the rulings of the court in respect to the instructions. The court refused an instruction to the effect that the defendant was not liable unless it killed the colt willfully, wantonly or through gross negligence, and instructed the jury substantially that it was liable for ordinary negligence. While some other criticisms are placed upon the instruction, this is the pivotal question. If the ruling was right in this respect, the other matters referred to must be regarded as immaterial, and the judgment must stand; if not, the judgment must be reversed.

Counsel for the company rely largely on the case of Railroad Co. v. Rollins, 5 Kas. 167, in which the company was held liable only for gross negligence. They insist that the principles there laid down have been since frequently affirmed by this court, and are controlling and decisive in the case at bar. 'We think not. Without intending any departure from those principles, we think that case is not in point. There the plaintiff, living in the vicinity of the railroad track, turned his cattle loose on uninclosed fields, from which they strayed upon the railroad track and were killed by a passing train. In so doing, he was chargeable with some blame. He knew the unfenced condition of the road, knew of the passing trains, and knew that his cattle turned loose might very naturally wander in the direction of the track. Hence, it could, not be said that he was entirely without fault. But in the case at bar, the plaintiff was without any fault. He took all reasonable precautions to confine his colt, placed it in a field inclosed by a secure and safe fence. Without any fault on his part, and through the misconduct or negligence of some unknown person, in the night-time, the gate was left open and through it the animal wandered upon defendant’s track. While technically the animal was a trespasser, yet it was so trespassing after reasonable precautions had been taken by the plaintiff, and without any fault on his part. Under those circumstances, the .company was bound to use ordinary care to prevent injury.

The case of Railroad Co. v. Brown, 14 Kas. 469, is in its facts very much in point. There the plaintiff’s stock had been by him shut up in his barn, and without any fault on his part, in the night-time, got out therefrom and strayed upon the railroad track, and were killed. In that case the company was held liable. It is true this particular question was not then discussed or specially considered, so that the case is not a direct authority. (See also Railroad Co. v. Wilson, 28 Kas. 637; Railroad Co. v. Riggs, ante, p. 622.)

It is true that authorities in other states are conflicting on this question. See the various authorities cited in briefs of opposing counsel. We think in' principle, however, it is more just and fair that where the owner of stock is without fault, and has taken every reasonable precaution to keep his animals confined, and through some unexpected casualty, or misconduct or negligence of a third party, the animals escape from such confinement upon the grounds of another, the latter should use ordinary care to prevent their being injured. See in support of these views the following authorities from other states: Pearson v. Milwaukee &c. Rly. Co., 45 Iowa, 497; Rockford &c. Rld. Co. v. Rafferty, 73 Ill. 58; Baltimore &c. Rld. Co. v. Mulligan, 45 Md. 486; Bemis v. Conn. &c. Rld. Co., 42 Vt. 375; Cinn. & Zanesville Rld. Co. v. Smith, 22 Ohio St. 244; Ill. Cent. Rld. Co. v. Baker, 47 Ill. 295; Little Rock & Ft. S. Rld. Co. v. Finley, 37 Ark. 562; Richmond v. Sacramento &c. Rld. Co., 18 Cal. 351.

Again, it is insisted that plaintiff’s bill of particulars charged the defendant with liability on account of the lack of a fence, and that therefore evidence of negligence was improperly overruled. It is true the bill of particulars alleged the lack of a fence, but it also counted on the negligence of defendant, and while plaintiff failed to prove the former he did the latter. This he might do. (Stewart v. Rld. Co., 27 Kas. 631.) If there was any lack of definiteness in the allegation of negligence, it should have been corrected by motion. We see nothing else requiring notice, and the judgment will be affirmed.

All the Justices concurring.