101 Kan. 631 | Kan. | 1917
The opinion of the court was delivered by
The plaintiffs brought this action for damages against the defendants for the poisoning of a large number of cattle in the Santa Fe stockyards at Elgin, in Chautauqua county. Plaintiffs shipped several trainloads of cattle from Texas through Fort Worth to Elgin, Kansas, to be pastured in northern Oklahoma, near Elgin. Several hundred of these
The petition alleged, and the plaintiffs’ evidence tended to prove, that as the cattle went into the dipping vat some of the dipping fluid splashed over the side of the vat and down into a ditch just outside the vat and outside the stockyards fence. At the south end of the vat was a dripping space where the dipped cattle were kept for a short time until the dipping fluid could drip from their bodies. The dipping fluid was a solution of' arsenic, sal soda, caustic soda, and water. There was a cistern under or near the dripping space which caught the drip so that it could be pumped back into the vat and reused. There was some overflow from this cistern, and part of it formed a pool or “swag” in or near the dripping space. Some of this overflow passed out into the ditch through the stockyards fence. The ditch drains most of the town of Elgin and flows south alongside the stockyards. Some two or three months before this shipment of cattle was received, some cattle belonging to
After the cattle were dipped and allowed to stand and drip for some time they were driven south into other pens of the stockyards, and some of them drank from the ditch there; and as they were led and driven on their way to the Oklahoma pastures they gave signs of sickness — slobbering, scouring, etc. Soon one dropped and was left. Others sickened soon afterward. The first was found dead that night, and within two or three days 35 of them died, and the remaining 768 head “became sick and remained sick for many days, became gaunt and puny, and for a long time refused to eat, grow or put on flesh and fatten.”
The plaintiffs asked for judgment for the value of the cattle which died and for damages as to the others.
Separate answers and defenses were presented by the railway company and by Considine. At the conclusion of plaintiffs’ evidence each of the defendants demurred thereto'. Both demurrers were sustained, and plaintiffs appeal.
It is not clear how any responsibility for the death of the cattle can be attributed to the railway company. The Santa Fe had nothing to do with the dipping of the cattle. It had no notice that the water in the ditch was poisonous. While the ditch outside its west fence had been turned so that the water might flow across its premises, it had only been so turned about ten days. While there was a rain the night of the arrival of the cattle, the weather had been dry up to that time and probably no water had been flowing in the ditch since it was dammed up outside and an egress provided for its flow across the railway’s property. The cattle were not in the custody of the railway company while they were being dipped, nor afterwards. They were taken in charge by plaintiffs’ employees in the morning, and the employees of plaintiffs and of
Turning to the evidence against Considine, the plaintiffs made a stronger, clearer case. Considine owned the dipping vat. He had charge of the dipping decoction furnished by the state of Oklahoma for disinfection. He knew the dipping solution was poisonous. He knew it was liable to splash out of the vat and find its way into the ditch. He knew cattle had been poisoned by drinking of the ditch water below the point where the dipping solution flowed into it. He had acknowledged a liability on account of such poisoning sometime before — a fact significant here only because it tended to prove that the ditch water was poisonous below the point where the arsenic solution flowed into it. He knew that the cattle would drink water polluted witla dipping fluid, and he permitted a “swag” or basin to exist where such polluted waters could accumulate in rainy weather and flow thence into the ditch, and he turned the ditch across the stockyards to prevent town cows from drinking the polluted water. He negligently ignored the probability that cattle which had to pass through the stockyards would drink the polluted water. While we may be stating the above facts positively, it is only to test their sufficiency under the demurrer. A jury might not believe this rehearsal of facts, they may be wholly disproved by other evidence; but on demurrer the strongest possible effect is to be accorded to them. (The State, ex rel., v. Gerhards, 99 Kan. 462, 464, 162 Pac. 1149.) As to the proof that the cattle which
Again, it is urged that Considine was a public officer of the state of Oklahoma and of the federal government, performing duties calling for judgment and discretion, and that he was not liable personally unless his official acts were corrupt, malicious, or outside his official powers and duties. There can be no quarrel with that general doctrine, and if the negligence related to Considine’s official inspection — scrutinizing them to see if they were free from disease and properly-disinfected before their entrance into Oklahoma — Considine’s liability and his relation to this case would be very different indeed. But at this stage of the case, so far as .this court can now discern, Considine’s establishment of the dipping vat, the splashing of the poisoned dipping fluid into the ditch, the cattle’s drinking of the polluted ditch water, and the consequent injury to some and the death of others — none of these matters had anything to do with his official inspection of the cattle. The establishment and maintenance of the dipping vat was his private enterprise, something he could have undertaken even if he had held no offices under government; and his improper establishment and maintenance of the dipping vat, his improper disposition of the polluted ditch water by turning it across the yards where the cattle dipped in his vat