Central Branch Railroad v. Phillipi

20 Kan. 9 | Kan. | 1878

Lead Opinion

The opinion of the court was delivered by

Brewer, J.:

This was an action to recover damages for stock killed. Judgment was rendered by the justice of the peace in favor of the plaintiff. This judgment was, as to all matters now in controversy, affirmed by the district court, upon proceedings in error. And to reverse this judgment of affirmance, this petition in error has been filed in this court.

No question under the stock-killing law of 1874 arises in this case, as the cattle were killed at a public crossing. The bill of particulars alleged that they were killed through the negligence of the defendant. And now it is objected that it did not allege that the negligence of the company was “ gross.” Clearly such allegation was unnecessary. Ordinary negligence rendered the company liable, and an allegation of gross negligence would be superfluous.

Again, it is objected that the testimony was insufficient to sustain the finding and judgment. Waiving all objection as to the lack of a motion for a new trial, it seems to us that if every step had been taken to have this question properly presented the judgment must be sustained. There was testimony showing that no whistle was sounded, or other alarm given, until the train was within twenty rods of the crossing. This was negligence. (Gen. Stat., p. 206, § 60; L. L. & G. Rld. Co. v. Rice, 10 Kas. 426.) It is doubtful whether any negligence could be imputed to the plaintiff — whether he did not use all the care chargeable upon one driving cattle along a public road. But whether he was guilty of any negligence or not, was, under the circumstances of this case, principally a question of fact, and the finding of the justice, like the verdict of a jury, settles such questions.

We see nothing in the record which would authorize us to disturb the judgment, and it will be affirmed.

Vaeentine, J., concurring.

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Concurrence Opinion

Horton, C. J.:

I agree that the bill of particulars states a cause of action, and concur in the conclusion of the court that the judgment must be affirmed, but base my opinion solely upon the fact that the record fails to contain any motion for a new trial. Rice v. Harvey, 18 Kas.; Ayers v. Crum, 13 Kas. 269; Nesbit v. Hines, 17 Kas. 316; Hover v. Cockins, id. 518. If no motion for a new trial was necessary, in the absence of a jury, then it is doubtful whether any writ of error lies from the judgment of a justice of the peace, when the error complained of is that the findings are against the evidence. I concede that the railroad company was guilty of negligence in failing to ring the bell, or sound the whistle on the locomotive, for a distance of at least eighty rods before the train reached the public road where the cow of the defendant in error was injured; (Sec. 60, ch. 23, Gen. Stat.;) but think the testimony of the defendant in error on the trial shows that his acts, directly contributing to produce the injury, amounted to negligence per se. I do not think he used prudence to guard against the injury. The undisputed testimony shows the defendant in error resided on a quarter-section of land, a corner ■ of which was about forty rods from the railroad, and not far from the public road where the cow was injured; that the train usually passed the crossing about 11 o’clock a.m. each day, but was not always on time; the train passed in plain view of the house of defendant in error. Just before starting to drive his cattle to water, (there were ten of them,) without knowing whether the train had passed or not that forenoon, he looked at the clock to see what time it was, and ascertained that it was near train-time, and at once attempted to drive his cattle across the track at the public crossing. When the cattle reached the track the owner was about eight rods from theln. The complaint is made that the bell of the locomotive was not rung till the train was within twenty rods of the cattle, and that a cut or bluff, about twenty-five or thirty rods from the crossing, obstructed the view beyond that point, so that the train could not be seen; but the testimony does not show but what he had time to get the cattle across the track if he had seen the cars at the cut or bluff, and the statement of plaintiff is conclusive, that if he had been close to his cattle, he could have seen the train approaching near one-half a mile distant and that the cattle might have been hurried across the track in a great deal less time than a minute. With full knowledge that he might, at any moment, expect the morning train going east, he got his cattle near to the railroad track on the public highway, and then loitered along, absolutely indifferent as to results. He used no care or vigilance for their safety. I hold that there was no evidence whatever to support the judgment, and do not think the views I have expressed are at all in conflict with L. L. & G. Rld. Co. v. Rice, supra.