88 Kan. 84 | Kan. | 1912
The opinion of the court was delivered by
Wyatt Stanley sued the Atchison, Topeka & Santa Fe Railway Company for damages resulting from the escape of cattle from his feed lot, alleged to have been due to the defendant’s negligence. The plaintiff having died, the action was revived in the name of. his administratrix. Upon a jury trial a general verdict was returned against the defendant, but judgment was rendered in its favor upon the special findings. The plaintiff appeals.
The evidence tended to show these facts: Stanley
The defendant maintains that in any view of the findings the judgment ought not to be reversed, for the reason that the petition does not state a cause of action, because the company was under no obligation to maintain the fence, except for the purpose of avoiding liability for animals killed or injured by its trains, and therefore can not be held accountable for any other kind of loss occasioned by the want of a sufficient fence. The original statute upon the subject does not in terms require a railroad right of way to be fenced. It makes the company responsible for animals killed or injured by the operation of its railway irrespective of negligence, except where the road is enclosed with a lawful fence. (Gen. Stat. 1909, §§7001, 7005.) It seems to be generally held that where a railway company is not required to fence its right of way, but does so voluntarily, it incurs no liability by reason of suffering it to become out of repair. (Davis Bros. & Burke et al., v. Le Flore, 26 Okla. 729, 110 Pac. 782; Illinois Cent. R. Co. v. Clogston, [Miss. 1911] 54 South. 75.) A statute similar to that cited has been held to impose a duty to fence. (Sullivan v. O. R. & N. Co., 19 Ore. 319, 24 Pac. 408.) We need not determine, however, what the rights of the parties would be if this were the only statute applicable. There is a later one providing in effect that an adjoining landowner may, by making a demand, require a railroad company to fence its right of way
The defendant urges that the purpose of the statute referred to is to promote safety in the running of trains; that in this purpose is found the only warrant for imposing upon the railroad company the obligation to fence its right of way; and that therefore the company’s liability must be limited to injuries resulting from the operation of the road, and the state has no power to make it liable for losses occasioned by the escape of animals which do not meet with any injury upon the right of way. Assuming that the right of the legislature to require a railroad company to fence its tracks is based solely upon the consideration that such fencing may be deemed necessary to diminish the
The judgment in favor of the defendant was obviously based upon the theory that the special findings showed the plaintiff to have been guilty of contributory negligence in not having himself done something to secure the cattle, after acquiring knowledge of the condition in which the company’s employees had left the'fence. There were findings to the effect that the cattle escaped at about dusk; that a little after noon of the same day the plaintiff saw the fence, which was then.in such condition that the cattle could readily pass out of the lot, and took no steps to make the enclosure stronger or safer; that the employees, of the company did no work on the fence that day. Stanley testified at a former trial, and the testimony was used at this one, that his cattle had got out a week or ten days before, and he had asked the company’s agent to have the fence fixed; that at noon of the day in question he saw the fence and' thought it was not strong enough to hold a bunch of cattle, but it had stood the night before, so he left it; that new holes had been dug and >new posts laid beside them, but not set;.that he saw a car on the switch about fifty yards away and supposed material and tools were on the car; that he did nothing with the fence, but told his hands to feed the cattle in the part of the lot farthest from the gap. There was testimony that this was done. In the light of this evidence we think it was a fair question for the jury to determine whether under the facts as established by the findings referred to Stanley was guilty of contributory negligence in failing to take any further precaution. There is room for
The jury were asked: “If said Stanley observed the condition of said wires about one o’clock on the day the cattle escaped, could he by use of ordinary care have made said enclosure safer and prevented his cattle from escaping at the point where they escaped that evening?’’ They answered: “No, it would have taken extraordinary care.” Another question was: “If Wyatt Stanley observed the condition of the wires about one o’clock of the day on which said cattle escaped, what, if anything, was there to prevent him from making said enclosure safe by the exercise of ordinary care on his part, so as to prevent the escape of his cattle at said place?” The jury at first returned the answer: “We think Mr. Stanley expected the fence gang to return that afternoon to fix the fence.” Upon the request of the defendant the court required the- jury to make a different' response to this question, and their second answer read: “We don’t know.”
Ordinarily when the jury are asked whether a certain fact exists, a reply that they do not know is equivalent to a statement that the evidence does not persuade them of its existence, and amounts to a finding against the party upon whom the burden of proving it rests. (Morrow, et al., v. Comm’rs of Saline Co., 21 Kan. 484; A. T. & S. F. Rld. Co. v. Lannigan, 56 Kan. 109, 42 Pac. 343.) The defendant maintains that upon this principle the jury are to be regarded as having found thát there was nothing to prevent Stanley from making the enclosure safe by the exercise of ordinary care; in other