28 Kan. 637 | Kan. | 1882
The opinion of the court was delivered by
This was an action for damages for the negligent killing of defendant in error’s heifer by a freight train on plaintiff in error’s road. The facts in the case are briefly these: Wilson (plaintiff below) was the owner of a heifer, which he turned out of his corral into the public highway on the morning of June 29, 1881. On the evening of that day, the heifer, in a drove of cattle numbering from one hundred to one hundred and fifty, came down the highway which crosses the railroad near Wilson’s house, and in attempting to cross the railroad was struck at the railroad crossing on the highway by the engine of a freight train. No one was in the immediate charge or control of the cattle. About twenty-five of the drove had succeeded in crossing the track when the heifer in controversy in trying to cross the track was struck. The track of the railroad at the crossing was such that parties on the. train could ordinarily have seen the cattle at a distance of three hundred yards. No whistle was blown at a point eighty rods from the crossing, or as the engine'approached the crossing. The train was running at its usual rate of speed, and that speed was not slackened until the heifer was struck. When the engine reached a point eighty rods from the crossing, the cattle had not reached the track. The engine threw the heifer from the highway into a pond, which the railroad company had made in building the track.
The judgment of the district court will be affirmed.