25 Kan. 632 | Kan. | 1881
The opinion of the court was delivered by
This was an action brought by John M. Neville against the Kansas City, Lawrence & Southern railroad company, for killing certain stock of his in Anderson county, Kansas. The action was based upon the railroad stock law of 1874. (Comp. Laws of 1879, pp. 784, 785.) Under the provisions of such law every railroad company is made liable for all stock killed by it in operating its road, except where such “road is inclosed with a good and lawful fence to prevent such animals from being on such road.” (Sec. 5 of said law.) The action was commenced before a justice of the peace, and the plaintiff alleged in his bill of particulars, among other things, “that the said railway of defendant was not, at the time of said killing, and is not now, inclosed with a good and lawful fence to prevent said animals, or any other animals, from being on said railway.” This was the only allegation in the bill of particulars with regard to a want of a sufficient fence. On the trial of this case in the district court, to which court the case had been removed by appeal, the plaintiff proved that “the railroad of the defendant was not fenced where they (the animals of the plaintiff) were killed.” This was the only evidence introduced or offered with regard to the railroad being fenced or not being fenced. All the other allegations of the plaintiff’s bill of particulars were sufficiently proved; and upon the bill of particulars and the evidence the court below found generally in favor of' the plaintiff and against the defendant, and rendered judgment accordingly.
The defendant below, plaintiff in error, now claims that the judgment of the court below is erroneous, because it was not sufficiently alleged or proved that the defendant’s road was not sufficiently fenced where the animals first went upon the road. It is true that the allegation with regard to the
Now while we are inclined to agree with counsel, that if the animals had entered upon the road at a place where the railroad company was not bound to fence its road, or if the animals had broken over a lawful fence and entered upon the road, and then had wandered to a place where the road was not fenced, and had there been killed, without any negligence on the part of the railroad company, that the railroad company would not be responsible; but as it is not necessary to decide that question in this case, we shall not decide it, for we think the evidence was sufficient to justify the court below in finding that the road was not fenced where the animals entered upon'it; or, at most, we do not think that we would
The judgment of the court below will be affirmed.
