34 Kan. 132 | Kan. | 1885
The opinion of the court was delivered by
This was an action brought by Cal. R. Gabbert in the district court of Rice county, against the Atchison, Topeka & Santa Fe Railroad Company, to recover the sum of $500 and an attorneys’ fee, for the killing of a one-year-old jackass belonging to the plaintiff. The plaintiff alleged, among other things, the failure on the part of the defendant to fence its railroad, the straying of the animal from the plaintiff’s premises upon the railroad track without any fault on the part of the plaintiff, and the killing of the animal by the railroad company in the operation of its railroad. All proper allegations were set forth in the plaintiff’s petition necessary to enable him to recover under the railroad stock law of 1874.
“If the owner of an animal should negligently permit the same to enter upon the railroad company’s track at or about the time when a train was passing, and the animal should thereby be iujured, the owner could not recover. And although the owner of live stock may permit the same to pasture on his own land in the vicinity of a railroad track, and although the railroad company may be in fault in not building a fence, yet the owner must use reasonable and ordinary care and diligence for the safety and protection of his stock, or he cannot recover.”
The plaintiff in error, defendant below, also claims that the court below erred in giving the following instruction to the jury:
“If you should find from the evidence that plaintiff is entitled to recover, the measure of his damages is the actual market value of the jack killed, with 7 per cent, interest from the date of the demand till the present time, but the entire amount cannot in any event exceed $500.”
There are cases of tort at common law in which interest, or, perhaps more properly speaking, damages in the nature of interest, may be allowed. (Mote v. C. & N. W. Rly. Co., 27 Iowa, 22; Dean v. C. & N. W. Rly. Co., 43 Wis. 305; 3 Parsons on Contracts, side-page 105.) But this is not one of such cases. This is not an action at common law, but, as before stated, is purely an action under the statute, the railroad stock law of 1874, which is a stringent law, giving to parties an action where none existed before, giving damages where none could have been recovered before, and giving an attorney’s fee in the same action — a thing unknown to the common law; and therefore where parties choose to sue under such statute, they must be satisfied with just what the statute itself gives them.
The judgment in this case, with the consent of the plaintiff below, defendant in error, will be modified by deducting interest from the amount recovered at the rate of seven per cent, from the date of the demand, to wit, July 25, 1882, t‘o the date of the verdict, to wit, March 24, 1884; but if such consent is not given, the judgment of the court below will be reversed, and the cause remanded for a new trial.
Judgment modified.