100 Kan. 219 | Kan. | 1917
The opinion of the court was delivered by
The plaintiffs brought these actions to recover for the loss of a number of cattle, some of which were drowned and others injured when the cars in which they were being transported were washed into the Kansas river. The petition in substance alleged the following acts of negligence: that defendant selected for its right of way a tract of land “unnecessarily close to and along the bank of a deep, swift-flowing, large and dangerous river, to wit: the Kansas river,” and had carelessly and negligently constructed on its right of way “an insufficient road bed and track and failed to protect said rail-road bed and track with sufficient retaining walls, timbers,
The cattle were to be delivered at the Kansas City stockyards. At an early hour on the morning of September 7, 1914, the train with plaintiffs’ cattle was on a switch track leading to the stockyards and had arrived at the bridge over' Turkey creek. There was a great rise of water in the creek which at' this time had not overflowed its banks, but the piling of the bridge was shaking so that the engine foreman in charge of the train considered it unsafe to take the train across. The trainmaster directed him to pull back and said he would arrange to get the train over the Burlington track, which would require some telephoning, to obtain permission from the other road. While the train men were executing the order to pull the train back from the bridge the water began to run across the banks of the stream, and it was found impossible to get the train back. An attempt was then made to get the train upon a higher track located on the embankment or dike of the drainage district. Before this could be done the flood of waters washed a tie under one of the cars, derailing it and stalling the engine. While efforts were being made to get the car on the rails, the embankment broke from the force of the flood waters, and the train men opened the car doors to let the cattle out. The force of the water from the creek was so great that it washed great holes in the dike and several of the cars were carried half way across the Kansas river. Twelve of the
The jury returned a verdict in plaintiffs’ favor, and special findings to the effect that the flood in Turkey creek was higher than any previous flood in thirty-five years; that it washed three holes in the river embankment from 50 to 150 feet in depth; that defendant’s employees were not guilty of any negligence after discovering the danger to which plaintiffs’ cattle were exposed; that the cause of the loss of the cattle was “an insufficient bridge across Turkey creek”; and that defendant’s negligence consisted in having this unsafe bridge before the flood came. On defendant’s motion the court gave judgment against plaintiffs on the spe'cial findings. It is from this ruling that plaintiffs appeal.
Even if the petition had alleged that the bridge was defective, the evidence shows beyond question that the insufficiency of the bridge was not the proximate cause of the loss of the cattle. The unprecedented rise of the water in Turkey creek had undermined the bridge before the train came along, and the jury could do no less than approve all that the defendant’s employees did in attempting to take the train around by another way, and, failing in that, to get the train upon a higher track. However, under repeated decisions, the jury having found that the negligence consisted of something not charged in the petition, the defendant was entitled to judgment for costs. (See authorities cited in the opinions in the recent cases of McBeth v. Railway Co., 95 Kan. 364, 148 Pac. 621, and Spinden v. Railway Co., 95 Kan. 474, 148 Pac. 747.)
The judgment is affirmed.