28 Kan. 539 | Kan. | 1882
The opinion of the court was delivered by
The only question raised in this case is based upon the findings of 'fact that the animal killed was struck by the cars of the railroad company upon a crossing used by the public for many years. There was no public way, however, laid put or of record across the track at this place. Counsel for the railroad company contend that the crossing was a highway defacto, and therefore that the company was excused from inclosing it with a fence. This identical question has been passed upon and decided in favor of the claim of plaintiff in error in Soward v. Rld. Co., 33 Iowa 386. We content ourselves with a reference to that case and the argument there stated. Although it was the duty of the railroad company to construct and keep in repair at the crossing of the public highway near by a good and substantial crossing as required by the statute, and although the company might in a proper action have been compelled to perform its duty, yet that in no manner prevented the crossing where the animal was struck from being a highway defactoso long as it was openly and notoriously used as a highway by the public.
The judgment of the district court must be reversed, and the cause remanded with direction upon the findings of fact, to enter judgment for the plaintiff in error (defendant below).