92 P. 539 | Kan. | 1907
The opinion of the court was delivered by
This action was commenced by Joseph Hoff against.the St. Louis & San Francisco Railroad Company, before a justice of the peace, to recover the value of a mule alleged to have been injured through
The defendant objected to any evidence under the bill of particulars, upon the ground that it did not state facts sufficient to constitute a cause of action, which objection was overruled.
Evidence was offered showing that there was a gate through the right-of-way fence -between plaintiff’s pasture and the railroad track, opening to a private crossing; that a wreck occurred near this gate, and in transferring passengers, soon afterward, from one train to another around this wreck this gate was removed and placed over a ditch on the plaintiff’s land, where the passengers walked in effecting the transfer. It appears that openings were also made in this right-of-way fence into plaintiff’s pasture for passengers where they left the right of way, and where they returned to it beyond the wreck. The plaintiff’s mule was in this pasture at the time of the wreck, and the next day was found standing near the track with its leg broken, and a pool of blood was seen near by. The evidence does not disclose how, or by whom, the gate was removed and the other openings made, unless it is shown by inference. The fence was in good condition and the gate in place the day before the wreck. The evidence showing these facts, except that the mule was injured, was all.objected to as being immaterial and not within the issues, and proper exceptions were taken. The defendant also demurred to the evidence, and offered none in defense. The errors complained of relate to the overruling of the preliminary objection
It is manifest that the case was tried upon the theory that the liability was based on the failure of the company to have its road enclosed as provided by the statute. (Gen. Stat. 1901, §§ 5859, 5863.) The-proof of a written demand, tlie claim and allowance of an attorney’s fee, and the careful inquiry into the condition of the fence before the accident, sufficiently indicate this. Certainly no attorney’s fee could be allowed if the suit were based upon negligence in. operating the train. (A. T. & Santa Fe Rld. Co. v. Edwards, 20 Kan. 531.) In order to recover damages for a failure to fence, there must be an allegation of such omission in the pleadings. (Hadley v. C. B. U. P. Rld. Co., 22 Kan. 359; St. L. & S. F. Rly. Co. v. McReynolds, 24 Kan. 368; Barrackman v. Girard, 26 Kan. 284.) It is true that a very informal statement is held to be sufficient in a bill of particulars before a justice of the peace; but where there is an absolute-omission to state a fact essential to the cause of action, and such fact is not deducible nor inferable from those which are stated, the defect is fatal, where a proper objection is taken and there is no waiver. (K. P. Rly. Co. v. Taylor, 17 Kan. 566.) In this case proof of the removal of the fence does not cure the defect, because such proof was duly objected to, and no request was. made for leave to amend. The plaintiff now argues that such testimony was. competent to show a situation requiring greater care in the operation of the trains, and hence that the injury was the result of negligence in such operation. It seems more reasonable to conclude from the conduct' of the trial and the evidence offered that the negligence relied upon was the failure to maintain the fence. (A. T. & Santa Fe Rld. Co. v. Jones, 20 Kan. 527.)
In Barrackman v. Girard, supra, a similar question
The judgment is reversed and the cause remanded for further proceedings.