89 Ky. 193 | Ky. Ct. App. | 1889
delivered the opinion oe the court.
Section 2 of chapter 57, General Statutes, title Injuries to Person or Property, provides: “If, by the
As we construe this statute, the question of negligence on the part of the company is not required to be alleged or provexx in order to entitle the owner of the stock killed or injured to recover of the company one-half the loss sustained. This action by the appellee is based on the statute, and a recovery having been had in the court below on an admission of the facts alleged by the demurrer filed, the sole question presented is, did the facts alleged, if true, authorize the judgment, the appellant having declined to amend when the general demurrer was overruled %
It is alleged by the plaintiff that his horse was killed on the track of the railroad adjoining the lands in his occupancy, and that he had xiot received compensation from the company for fencing along said road. All the essentials to constitute a cause of action are set forth, except the alleged failure on the part of the company to compensate the owner of the land to enable him to make this fencing. If neither the owner nor the one occupying the land adjoining the track of the company where the stock was injured had received compen
Mr. Newman, in his work on pleading, says: “If the defendant’s promise contains, as part of it, an exception which qualifies his liability, or in certain contingencies renders him altogether irresponsible, the petition must, ordinarily, notice the exception or proviso. But when the proviso is distinct from the promise made, and' does not vary its legal effect, it is not necessary to notice it.” (Newman’s Pleading, 398.)
The obligation on the part of the company imposed by the statute is to furnish the owner or the occupant the means to construct fencing in order to prevent the injuries complained of. The body of the statute, in the one section and in the same sentence, relieves the company from liability upon compensation to either party; and while it may be neither an exception nor a proviso, in a technical sense, it is plain that the clause of the statute under which the recovery is sought makes the right of action, when the occupant sues, depend upon the failure by the company to compensate either the owner or the occupant to enable them to provide against such loss.
For the reasons indicated, the judgment is reversed, with directions to sustain the demurrer, with leave to
Missouri Pacific Railway Company v. Humes, 115 U. S., 512; Johnson v. St. Louis, &c., Ry. Co., 76 Mo., 553; Mackie v. Central Railroad Co., 54 Iowa, 540.