38 Kan. 550 | Kan. | 1888
The opinion of the court was delivered by
The facts in this case as disclosed upon the trial are substantially as follows: On and prior to May 9, 1884, the Missouri Pacific Railway Company was running and operating a railroad from the city of St. Louis, Missouri, through the states of Missouri, Kansas, and Nebraska; on the 9th day of May, 1884, it was carrying on its road from Missouri through Kansas to Nebraska, from fifteen to eighteen cars of Texas cattle — one hundred head — which had been shipped by the owner over the railway, who was upon the train in which they were being transported. On said May 9, while the cattle were in transit through Brown county, in this state, three to five cars of the cattle were derailed and wrecked; many of the cattle were injured and killed, and it was necessary to remove the cattle from the train; the cattle could not
Finley brought this action against the railway company to recover the sum of ten hundred and fifty dollars. The jury returned a general verdict in his favor for eight hundred and eighty dollars, and judgment was entered thereon against the company. This action seems to have been brought and tried under the statute enacted for the protection of cattle against contagious diseases. (Laws of 1881, ch. 161; Laws of 1884, ch. 3.) The transactions complained of occurred in 1884, therefore prior to the legislation of 1885. (Laws of 1885, ch. 191, §5.)
The first contention of the railway company is, that the statute referred to cannot apply, as the same tends to place an embargo upon interstate commerce, and Railway Co. v. Husen, 95 U. S. 465, is cited as decisive. In that case, a statute of
In the case of The State of Kansas v. Mugler, 25 Rep. 1, decided by the supreme court of the United States, that court said:
“Property, under our form of government, is subject to the obligation that it shall not be used so as to injuriously affect the rights of the community. ... It belongs to the legislative branch of the government to exert what are known as police powers of the state, and to determine primarily what measures are appropriate, or needful, for the protection of the public morals, the public health, or the public safety.”
“3. The burden of proof in this action is upon the plaintiff, and in order to recover, it is necessary for plaintiff to prove by a preponderance of evidence the existence of each and all of the following facts: First, that in said county of Brown, on or about the 9th day of May, 1884, said defendant, as a common carrier, was transporting as freight in its cars upon its railroad about one hundred head of Texas cattle; second, that said cattle were diseased with a disease known as Texas, splenic or Spanish fever; third, that at a point on said railroad in said county of Brown, the said cattle, at the time mentioned, were unloaded from the cars of the defendant, and by said defendant were driven along the highway over a portion of the territory of Brown county; fourth, that at said time and afterward, the plaintiff was the owner of a number of domestic cattle in said county; fifth, that without fault of plaintiff and in consequence of said cattle being driven through said territory the said disease of Texas, splenic or Spanish fever was communicated to the cattle of plaintiff; sixth, that by reason of said disease being so communicated to his said cattle, plaintiff sustained loss and damages.”
Upon the trial, C. W. Johnson, who testified that he was a lawyer by profession, and not a doctor, or veterinary surgeon, was allowed to give his opinion as to the symptoms and causes of Texas fever; and, also, was permitted to testify that the cattle communicating the Texas fever to domestic cattle in this state came from that part of Texas south of latitude thirty-
“ Q. I will ask you if you have read a great deal upon the subject of Texas cattle? Atis..• Yes, sir.
“Q,. And your information is principally derived from the knowledge you have derived from reading in regard to it ? A. From boobs; yes, sir.
“Q. Some little observation ? A. Yes, sir; from the testimony of experts, taken in a case in which I have been interested as a lawyer.
“Q,. Case in court? A. Yes, sir.
“ Q,. The principal portion, if not all, is from knowledge derived from books and the testimony of experts in court? A. Yes, sir.”
The judgment of the district court will be reversed, and the cause remanded for a new trial.