Central Branch Union Pacific Rld. v. Walters

24 Kan. 504 | Kan. | 1880

The opinion of the court was delivered by

"Valentine, J.:

This was an action under the railroad .stock-killing law of 1874. (Comp. Laws of 1879, p.784.) The railroad company was charged with killing five horses and wounding another (geldings and mares), belonging to the plaintiff below, defendant in error, Alanson Walters. Judgment was rendered in the court below in favor of the plaintiff and against the defendant, the railroad company, for $550 damages, $50 attorney’s fees, and costs; and the railroad ■company now brings the case to this court for review.

Many questions are raised in this court, but we do not think that it is. necessary to decide more than one or .two of them. The first is, with reference to the proof of the demand alleged to have been made by the plaintiff of the railroad company for the value of the stock alleged to have been killed and wounded. That such a demand is necessary — an essential prerequisite to enable the plaintiff to recover — see K. P. Rly. Co. v. Ball, 19 Kas. 535; C. B. U. P. Rld. Co. v. Butman, 22 Kas. 639. The demand may be made by parol or otherwise, (see last case cited); but, in whatever way it is made, it must be proved by competent evidence, (see first case above -cited.) In the present case, the demand was made in writing .and only in writing; and whether this writing .was properly proved or not, is the real question now presented for our consideration. That such writing (if it was a demand, as is ■claimed by the plaintiff,) was. served on the proper person and at the proper time, seems to be admitted by the defendant; but it is claimed by the defendant that it was not shown by any competent evidence to have been a demand. The •defendant claims that its contents were proved by secondary ■evidence only, without any proper foundation having been laid therefor. We think the defendant is correct. The writing claimed to have been a demand was proved by the introduction of a paper in evidence, which a witness testified was like the original paper claimed to have been a demand. The witness also testified that the two papers were “ exactly alike.” No attempt was made to account for the non-production of the original paper, and no notice of any kind was ever given to or served upon the defendant, or any of its agents or employés to produce it, or to give, or to permit to be taken, a copy thereof. Th§ original and the copy were probably drawn up at the same time, but there is nothing in the case tending to show that any agent or employé of the defendant ever saw or had any knowledge of the existence of the copy, until it was introduced' in evidence on the trial of this case. The copy was introduced in evidence over the objections and exceptions of the defendant; and in permitting it to be so introduced, we think the court below erred. (Guthrie v. Merrill, 4 Kas. 187; Johnson v. Mathews, 5 Kas. 118; Shaw v. Mason, 10 Kas. 184; Grant v. Pendery, 15 Kas. 236; Shepard v. Pratt, 16 Kas, 209; City of Waterville v. Hughan, 18 Kas. 473; Brock v. Cottingham, 23 Kas. 383.)

We are also inclined to think that the court below erred, in refusing to permit the defendant to prove the third defense set up in its answer. This defense was a counter-claim, in which the defendant alleged that said horses were knowingly and intentionally permitted to run at large, and on the defendant’s premises, in violation of the herd law of the state, (Comp. Laws of 1879, p. 933, et seq.,) whereby the defendant’s train was wrecked, and great damage was thereby done to the defendant. We understand that the court below refused to permit this counter-claim to be proved, on the ground that the defendant had not alleged that it itself was free from all fault or negligence. Now the defendant did not admit that it was guilty of any fault or negligence, its pleadings did not show that it was, and it denied in its answer all the allegations of the plaintiff charging it with fault or negligence. And the defendant’s fault or negligence is matter to be shown by the other party. Upon this subject, (that is, allegations denying contributory negligence,) see K. P. Rly. Co. v. Pointer, 14 Kas. 38, 50, 51; Gibson v. City of Wyandotte, 20 Kas. 156, 158.

With reference to the other questions raised in this case, we do not wish to express any decided opinion, as we do not think it is necessary. We might say, however, that from the ease as it is now presented, we could hardly say that the court below committed any material error with regard to such questions.

The judgment of the court below will be reversed, and the cause remanded for a new trial.

All the Justices concurring.