35 Kan. 58 | Kan. | 1886
The opinion of the court was delivered by
In this case, it appears from the agreed statement of facts that the plaintiff’s cattle escaped from his pasture and wandered from the public highway upon the uninclosed land of one Alva Clark, through which the defendant’s railway runs; the railway was not fenced, and the cattle entered upon it and were run over by a train; their escape had not been discovered, and there was no one in pursuit; the herd law of 1872 was in force in the county. It is claimed on the part of the railway company, defendant below, that the plaintiff was bound at all events to restrain his cattle; that the killing of the cattle was the result of concurring wrongs, and as the law can neither apportion the damages nor attribute the result to defendant’s default, disregarding that of plaintiff, no recovery can be had. Railway Co. v. Lea, 20 Kas. 353, and Sherman and Redfield on Negligence, § 39, are cited. In Railway Co. v. Lea, the owner permitted his cow to run at large in violation of the herd law, and while so running at large the animal strayed upon the track of the railroad and was killed. In this case, the owner of the animals kept them confined on his farm in a pasture inclosed with a good and lawful fence, and, without his fault, they escaped in the night-time from the pasture into a public highway, and wandered thence into uninclosed lands upon the defendant’s railway, which railway was wholly unfenced. Therefore the case of Railway Co. v. Lea is not controlling.
On the other hand, the agreed statement of facts brings the case within the following decisions of this court: Railway Co. v. Wiggins, 24 Kas. 588; Railway Co. v. Bradshaw, 33 id. 533; Railway Co. v. Roads, 33 id. 640.
Upon these decisions, the judgment of the district court must be affirmed.