| Kan. | Jan 15, 1884
The opinion of the court was delivered by
This was an action brought in the district court of Johnson county by E. R. Gooding against the Atchison, Topeka & Santa Fe railroad company, under the railroad stock law of 1874, (Comp. Laws of 1879, ch. 84, art. 2, pp. 784, 785,) to recover the value of a certain bull which the plaintiff alleged had been killed by the defendant in the operation of its road. The plaintiff alleged in his petition all the facts necessary to entitle him to recover, including the averment that said animal when killed was in the plaintiff’s inclosure, a pasture inclosed with a good and lawful fence; that said pasture extended on each side of the railroad, which ran through it; and that the railroad was wholly unfenced■ at any point within the pasture. The defendant answered, admitting every material allegation of the petition, but as a matter of defense set forth and alleged, “that said bull was over one year of age, and was permitted to run at large by plaintiff in the inclosure mentioned in his petition, and that the defendant owned a strip of land through said inclosure, upon which was its track, upon which said -bull strayed and was killed, (as.alleged in the petition.” To this answer the plaintiff demurred, upon the ground that the answer did.nqt state facts sufficient to cpnstitute a defense to the. plaintiff’s cause of action.. . The court below overruled the demurrer, to which ruling the plaintiff excepted, and he now brings the case to this court and asks for a reversal of
“Sec. 38. If any bull over one'year old ... be permitted to ran at large, the owner of the same shall be guilty of a misdemeanor, and on conviction thereof shall be fined for the first offense five dollars, and for every subsequent offense shall be fined ten dollars.”
The defendant also cites the case of the K. P. Rly. Co. v. Landis, 24 Kan. 406" court="Kan." date_filed="1880-07-15" href="https://app.midpage.ai/document/kansas-pacific-railway-co-v-landis-7885193?utm_source=webapp" opinion_id="7885193">24 Kas. 406, as controlling the decision of the present case. On the other side, the plaintiff cites the case of the A. T. & S. F. Rld. Co. v. Riggs, 31 Kan. 622" court="Kan." date_filed="1884-01-15" href="https://app.midpage.ai/document/atchison-topeka--santa-fé-railroad-v-riggs-7886230?utm_source=webapp" opinion_id="7886230">31 Kas. 622, as controlling the decision of this case. The present case we think is nearer like that of the A. T. & S. F. Rld. Co. v. Riggs than it is like the case of the K. P. Rly. Co. v. Landis. In the Landis case, it was held that Landis could not. recover for injuries to his animal, because he did not keep it confined, within the provisions of the night herd law of 1868, which requires owners of animals to “keep them confined ; ” while in the Eiggs case, it was held that Eiggs might recover for the injuries to his animal, although it was claimed that he permitted it to “run at large,” in violation of the provisions of the county herd law of 1872. The statute governing in the present case, as does the county herd law of 1872, simply provides that such animals as the one that was injured in the present case, shall not be pemritted to “ran at large,” and it does not provide, as the night herd law of 1868 does, that the owners of the animals shall “ keep them confined.” While, for the purposes of this case, it may be admitted that the owner of the bull did not keep him confined, yet it can hardly be claimed that he permitted him to run at large. The bull was not permitted to run at large, but he was in fact confined within the owner’s premises, except that he could pass from the owner’s premises upon the right-of-way of the railway company; but if the railway company had fenced its road, as the law requires, the bull could not have passed at
The judgment of the court below will be reversed, and the cause remanded with the order that the demurrer to the defendant’s answer be sustained, and for such other proceedings in the case as may be proper.