60 Colo. 579 | Colo. | 1916
delivered the opinion of the court.
Action by defendants in error, as plaintiffs, against plaintiff in error, as defendant, to recover on six causes of action, for the value of cattle alleged to have been killed through the negligence of defendant. Verdict for plaintiffs in the sum of $595.00, upon which judgment was rendered. Defendant brings the case to this court on error.
In the original and amended complaints it was charged in substance, in the causes of action upon which a verdict was rendered, that on dates named cattle of plaintiffs of a value designated, strayed upon the right of way and track of defendant, and were killed by the negligence of the servants of defendant in operating its locomotives and cars. By the second amended complaint-it was charged in substance, either that defendant company, in fencing its right of way, carelessly and negligently left openings, or negligently failed to keep the fence in repair, whereby openings occurred, through which cattle could pass, and after getting on the right of way could not depart, except at the point of ingress, and were thereby entrapped thereon; that cattle of plaintiffs
The defendant moved to strike the second amended complaint upon the ground that it was a departure from the causes of action originally set forth, which was overruled. This ruling is the first question presented for our consideration. The plaintiffs originally alleged that certain of their cattle had been killed by the negligence of the defendant in the manner particularly specified. By their final complaint they seek to recover the value of the same cattle, which they allege were killed by the negligence of the defendant, but in a manner different from that originally alleged. This did not change either the character or cause of action. As long as the plaintiff adheres to the injury originally declared upon in an action based upon negligence, an alteration of the modes in which the defendant caused the injury by negligence is not an introduction of a new cause of action. Kent Mfg. Co. v. Zimmerman, 48 Colo. 388, 110 Pac. 187; Tanner v. Harper, 32 Colo. 156, 75 Pac. 404; 1 Enc. of Pl. and Pr. 564. The motion to strike was properly denied.
A general demurrer was interposed to the second amended complaint, which, was overruled. At the conclusion of the testimony the defendant moved for non-suit and a directed verdict, upon the ground that the testimony was insufficient to establish any liability against it, which was denied. These rulings are assigned as error and will be considered together.
The complaint in each cause of action, though not entirely clear, appears to have been framed upon the theory that defendant in fencing its right of way on both sides of the track left openings where the fence crossed gulches, or failed to keep it in repair, which caused openings through which the cattle of plaintiffs strayed on defendant’s right
Counsel for plaintiffs rely upon D. & R. G. Co. v. Robinson, 6 Colo. App. 432, 40 Pac. 840, where conditions similar to the fence and bridges in the case at bar were mentioned as a trap. That case held this was a proper subject of inquiry if the want of outlet was the cause of an animal’s destruction. Such is the construction given that case in C. & S. Ry. Co. v. Beeson, 19 Colo. App. 241, 74 Pac. 345. If an animal was fleeing from an approaching train, the fact that it might become entangled in an open bridge upon which the track was maintained, would be material to consider in determining whether the engineer exercised due care in preventing it being injured when so caught. But merely because an animal may have been killed by a locomotive of the defendant on or near such a bridge does not establish negligence in- the absence of proof regarding the manner the locomotive which killed it was operated. The animals were not killed by the bridges but by locomotives, and there is no proof that the several engineers operating them did not exercise due care to prevent collisions with the cattle. So that even if the maintenance of the fence and its connection with the bridges in the manner charged and proven might in a particular case give rise to a cause of action, yet unless the injury complained of is traceable thereto as a cause, it is immaterial what degree of. negligence the conditions thus brought about might constitute when it does not appear that such negligence was the proximate cause of the killing of the cattle. No liability attaches on account of .negligence
In addition to the causes of action we have considered, plaintiffs declared upon two others, designated the eighth and ninth, which at the conclusion of the testimony they voluntarily dismissed. To establish its defense to these causes the defendant introduced the testimony of three witnesses, one of whom resided at Kansas City and the others in Kansas. These witnesses attended at the request of defendant. Each filed an affidavit claiming attendance and mileage fees. The court allowed them for attendance and mileage from the point on the Colorado line, where the railroad over which they traveled to reach the place of trial, crossed that line. Defendant claims that the witnesses should have been allowed mileage from their respective places of residence. The plaintiffs have assigned cross error on the allowance of mileage.- Fees of witnesses either for attendance or mileage are purely statutory. Section 2543, Revised Statutes, 1908, provides the mileage to which a witness is entitled in going from his place of residence to the place named in the subpoena. This, of course, refers to witnesses subpoenaed within the state. There is no provision allowing a witness mileage from his residence outside of the state. Mileage is allowed a witness when subpoenaed because in obedience to the command of the court he has incurred expense in traveling to the place named in the subpoena. But when he is not under any obligation to attend a trial, the expense he incurs in traveling is voluntary, and he is not entitled to mileage. In other words, it is clearly not the purpose of the law to compensate a witness for the expense of travel, unless incurred in obedience to the command of the court, and hence, it follows that a witness cannot claim mileage unless he has been subpoenaed. Cases in point are: State v. Willis, 79 Iowa 326, 44 N. W. 699; Stern v. Herren, 102 N. C. 516, 8 S. E. 221; Fish v. Farwell, 33 Ill. App. 242; Fisher v. Burlington C. R. & N. Ry.
Several other questions are urged by counsel for the railroad company which it is not necessary to consider.
The judgment of the District Court on the six causes of action is reversed and the cause remanded for a new trial, and the taxation of costs for mileage is vacated.
Judgment Reversed '.
Garrigues, J., and Scott, J., concur.