36 Kan. 534 | Kan. | 1887
Opinion by
The defendant in error has filed no brief, and therefore we cannot say upon what theory he claims that the judgment ought to be sustained. The plaintiff in error claims, first, that there is no evidence shown in the record to prove that the defendant is a corporation; and second, that there is a failure to prove that the injury complained of was caused by the negligence of the defendant, or of its agents or servants. As to the first of these propositions, we think the learned counsel are in error; and we first suggest this question: Was it necessary for the plaintiff to prove that the defendant was a corporation, under his bill of particulars, to' entitle him to recover? The statute under which this action was brought, is as follows:
“Every railway company or corporation in this state, and every assignee or lessee of such company or corporation, shall be liable to pay to the owner the full value of each and every animal killed, and all damages to each and every animal wounded by the engine or cars of such railway, or in any*536 other manner whatever in operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation, or the assignee or lessee thereof, or not.” (Comp. Laws of 1885, ¶ 5205.)
“ Q. Ho you know that the Southern Kansas Eailway Company is a corporation different from the Kansas City, Lawrence & Southern corporation ? A. I do not. I understand they are the same identical road.
“ Q,. Do you know what a corporation is ? Can they be the same ? A. I understand they are the same.”
This evidence not only admits that the Kansas City, Lawrence & Southern Kansas Eailway Company is a corporation, but it as well proves this fact by the witness. It is true, perhaps, that this was not the proper way to prove the existence of a corporation, but the defendant made the proof, and it cannot be heard now to say that the proof was incompetent.
It is also true that the train was running somewhat faster than the regular schedule time, but this fact alone is not sufficient to warrant the jury in finding defendant guilty of negligence, for the regulation in relation to the operation and running of freight trains is made by the railway company for its own convenience, and it has a right to run its trains at such rate of speed as to it seems advisable and its business demands.
There is one other question shown by the record we feel called upon to mention, although not complained of. That is the instructions of the court in withholding from the jury the question of demand provided for in paragraph 5206, Comp. Laws of 1885, and in substantially instructing the jury that before they could find for the plaintiff they must find that the injury complained of was caused by the negligence of the defendant. We think the evidence of a demand, as shown by the record, was sufficient to raise a question of fact, and ought to have been submitted to the jury; and as this question was not so submitted, and as the defendant has a right to have this question submitted and determined-by the jury, we cannot direct a judgment on the findings of fact as would otherwise be done by affirming the judgment.
It is recommended that the judgment of the court below be reversed.