24 Kan. 406 | Kan. | 1880
The opinion of the court was delivered by
This case was tried upon the following agreed statement of facts:
“The defendant is a corporation, and all through the year 1879 was running ánd operating a railroad in this state, and through this (Shawnee) county. In the night-time, on or about the 24th day of May, 1879, in Silver Lake township, in said county, and within what is known as the Pottawatomie reservation, a train of cars running on defendant’s road ran against and killed plaintiff’s mule within the inclosure of said plaintiff. But it is not intended to admit that the plaintiff owns the land occupied by defendant with its track and
The theory of the defendant is, that both parties were equal violators of the law, and that therefore plaintiff cannot recover; that of the plaintiff is, that the defendant was alone a transgressor, and mus't therefore pay for the injury which it is conceded was done. The case really turns upon the question whether the plaintiff was, as to the defendant, “confining the animal” at the time of the injury. That the defendant had not fenced its right of way, and was therefore liable under the stock law of 1874, is conceded, unless it appears that plaintiff was in equal wrong, and therefore within the case of C. B. U. P. Rld. Co. v. Lea, 20 Kas. 353, not entitled to a recovery. The language of the night herd law is, that the animal must be confined in the night-time. In this case the animal was loose in a quarter-section, which, as to the general public, was inclosed with a sufficient fence. Clearly, therefore, as to such general public, the plaintiff was without wrong. The case differs from that in 20 Kas. 353, in this, that there the animal was turned loose tó wander wherever inclined, and thus to commit depredation upon any member of the public; while heje the animal was so restrained, so “confined” to use the language of the statute, that the only party upon whose rights it could trespass was the defendant. Now, can a party be said to fully comply with the night herd law, who so confines his animals that they can trespass upon only one neighbor, or must it be held that as to that neighbor he violates the law, even though he keeps it as to all others ? Take an illustration: Suppose sixty-four parties own each ten acres in
It follows from these considerations that the court erred, and that thejudgmént must be reversed, and the case remanded with instructions to enter judgment for costs in favor of the defendant, plaintiff in error.