Louisville & N. R. R. v. Kice

109 Ky. 786 | Ky. Ct. App. | 1901

OPINION of the court bt

JUDGE BURNAM

Apeikming.

The appellee instituted this action against appellant to recover the value of a thoroughbred race horse alleged to have been negligently killed by one of appellant’s trains. The suit was instituted under section 809 of the Kentucky Statutes, which reads as follows: “If, by the locomotive or cars of any company, cattle shall be killed or injured on the track of said road adjoining the lands belonging to or in the occupation of the owner of such cattle, who has not received compensation for fencing said land along said road, the loss shall be divided between the railroad company and the owner of such cattle; but in every case where the cattle or killed or injured by 'negligence or carelessness of the agents or servants of the company, it shall pay full damages for such killing or injury.” Nppellant in its answer admitted the killing of the horse by its train, but denied that it was guilty of any negligence, and alleged that the killing of appellant’s horse was unavoidable so far as it was concerned. Several months after the institution of this suit, appellee filed an amended petition, in which he alleges that the place where the horse was killed was on the track of the defendant’s road adjoining lands belonging to, and occupied by, plaiu-tiff; that he had not received compensation for fencing his land along the road at that point; and asked that, if he was not allowed the fiull value of the horse, he have judgment for one-half of -such amount. To the filipg of this amended petition appellant objected on the ground that a distinct and separate cause of action was set rrp. Appellant’s objections were overruled, and the amended petition permitted to b,e filed. Thereupon appellant moved the court to require appellee to elect which of his alleged causes of action he would prosecute, which the court declined to do, and this refusal is the first alleged error relied on for reversal. The amended petition did not set up a separate or distinct cause of action. The gist of appellee’s action was to recover for the killing of Ms horse. Under the provisions of section 809 of the Kentucky Statutes, he was entitled to recover his full value if his killing by defendant’s agents was tbe result of negligence on their part, and half of his value if the killing occurred' on the track of appellant’s road adjoining lands belonging to, or in the occupation of, the owner, who had not received com. pensation for fencing his land along said road. Both remedies are provided by the same section of the statute, and are not inconsistent or incompatible with each other, and the court properly overruled the motion to require appellee to elect.

It is also contended by appellant that so much of section 809 of the Kentucky Statutes as declares railroad companies liable, regardless of the question of negligence, is unconstitutional, and in support of this contention refers us to the case of Railway Co. v. Autaolt (Colo. App.) 31 Pac., 177. The constitutionality of this statute was con. sidered by the court in the case of Railroad Co. v. Belcher, 89 Ky., 198, (12 S. W., 195), and it was held that such legis-. lation was not prohibited by any provision of the Constitution, and that there was no room to question the constitutionality of the act, referring to the case of Railway Co. v. Humes, 115 U. S., 512, (6 Sup. Ct, 110), (29 E. Ed., 463), in which an opinion of the Supreme Court of Missouri upholding the constitutionality of a similar act in that State was affirmed. The question is therefore not an open one in this State.

Another ground of complaint is that the trial court permitted witnesses for appellee to testify as to the pedigree of the horse killed, asi shown by the American stud books. Undoubtedly the pedigree of a race horse constitutes an important element in determining its value, as it is a matter of common knowledge that a much larger proportion of thoroughbred horses are successful racers than horses not so bred. It appears from the testimony that the stud books in question are records carefully compiled by experts under the supervision of tbe breeders of this class of horses, and that they have been so kept for many years, and are universally accepted as conclusive evidence upon this point by persons dealing in such animals. Section 1325 of the Kentucky Statutes provides severe penalties for furnishing false pedigrees of stock, and we are of the opinion that the court did not err in permitting the witnesses to testify as to the pedigree of the animal killed as shown by these records.

It is also contended that under the testimony appellant was entitled to have had a peremptory instruction given to the jury to find for them, in so far as appellee sought recovery on the ground of negligence, as it is contended that the uncontradicted testimony of appellant’s employes in charge of the train which killed the horse shows that there was no negligence on their part, and that every precaution was taken by them after the discovery of the horse to prevent injury. The testimony on this point is not of that clear and conclusive character in which this rule is applied. The engineer of the train, who is the chief witness on this point for appellant, testifies that his train was running twenty-five miles an hour when he discovered this horse, in company with three others, running on the side of the track about 100 feet ahead of the engine; that the engine at this time was about 700 feet from t'he mouth of the cut in which the horse was killed; that the cut was between 350 and 400 feet in length; that the horses had to run between 400 and 500 feet before they got to the mouth of the cut; that he thought they did not enter the cut at all, but passed over the hill; that the horse that was killed suddenly turned back, and attempted to cross the track immediately in front of the engine; that he applied his air brake as soon as lie discovered the horse, and actually stopped his train within 500 feet from where he first saw the horses. Witnesses for appellee contradict the statement of the engineer in several important particulars. They testify that the distance between the' point where the engineer locates his train at the time he first discovered the horses and the' point where the horse was struck in the cut was between 600 and 700 feet; that the horse did not go over the hill at all, but entered the cut, and ran directly in front of the engine for something like 300 feet before he was struck. It was the duty of appellant’s agent to have kept a lookout for stock upon its track and after their discovery to háve used all reasonable precautions, consistent with the safety of the train, to avoid injuring them. Under the evidence, the case was properly submitted to the jury, and we can not say that the jury was not warranted in concluding that appellant’s servants in charge of the train might not, by proper diligénce,, have avoided killing the horse. The testimony as to the value of the horse was very contlicting, and this question was properly submitted to the jury. The instructions complained of, we think, fairly give to the jury the law applicable to the case. For reasons indicated, the judgment is affirmed.