25 Kan. 582 | Kan. | 1881
The opinion of the court was delivered by
This was an action under the statute of 1874 •relating to the killing and injuring of stock in the operation •of railways. Upon the trial no evidence was introduced by •the railway company, and from the evidence of the plaintiff ••the court made the following findings:
“That on the 23d day of September, 1879, plaintiff was the •owner of a red-roan mare of the value of seventy dollars, as described and set out in plaintiff’s bill of particulars; that plaintiff then resided about three-quarters of a mile from the railroad of the defendant, in the county of Douglas and state -of Kansas, and about two and one-half miles north of Baldwin City, in said county and state; that the said red-roan mare was pasturing on ■ the open prairie not far from plaintiff’s
Upon the findings of fact, the court found that the plaintiff' below- was entitled to recover from the railroad company seventy dollars, the value of the mare, twenty-five dollars as-attorney’s fee, and all costs.
The other question is more difficult. But these things must be considered. Contributory negligence is matter of defense. If on this the testimony is in equipoise, the defendant fails. This is the rule in this state and in the supreme court of the United States; (K. P. Rly. Co. v. Pointer, 14 Kas. 37; R. R. Co. v. Gladmon, 15 Wall. 401;) though it must be conceded that the rule is different in some of the states. Again, the testimony is not preserved. We have only the findings of fact before us. The district court found generally for the plaintiff'.. This means that it found against contributory negligence. Before we can reverse, we must hold that as matter of law the facts stated show contributory negligence. It is not enough that they are consistent with such negligence, or that with others they would prove it, or even that upon these alone a finding of the court or a verdict of a jury against the plaintiff would have to be reversed by this court. Presumptions and inferences are with the decision.
Further, in reference to the facts, the plaintiff could not be deprived of the right to resort to the spring for water at any time of the day by reason of the omission of defendant to fence its road. Its neglect cast no new burden upon him — deprived him of no right. It is not stated why he went to the spring at this particular time. If family needs at the house required water, or if the animal he rode needed drink, he might properly go at that time, although it was the time for the ordinary passage of trains. Persons living along the line of a railroad are not obliged to delay or forego the ordinary duties and necessities of their lives in order to relieve the road from the consequences of its omission of duty. No presumption of wrong in the conduct of plaintiff arises. The presumption is, that he rode to the spring at that time because there was good reason for so going. If he rode simply to toll the loose animal into proximity to the track, or even without such motive, but with no occasion therefor, wrong might
There being no other question in the case, the judgment will be affirmed.