Wichita & Colorado Railway Co. v. Gibbs
Wichita & Colorado Railway Co. v. Gibbs
Opinion of the Court
This action was brought by W. E. Gibbs against the Wichita & Colorado Railway Company to recover, as damages, the value of the plaintiff’s cow and calf, alleged to have been killed by the negligence of the railway company in the operation of its railroad, at a point where it was not fenced. The jury returned a verdict in favor of Gibbs for $64.59, and judgment was rendered thereon. The railway company alleges numerous errors. The first complaint is, that the amended bill of particulars, upon which the case was tried, failed to state facts sufficient to constitute a cause of action, and therefore the court erred in overruling the demurrer thereto. As the action was brought under the railroad stock law of 1874, it was essential to allege that the stock was killed or injured in the county in which the suit was commenced; and it is contended that there is an entire omission of any allegation in regard to the county in which the animal in controversy was alleged to have been killed. Although the allegations are not as explicit in this respect as they should have been, we think they sufficiently show that the accident occurred in Reno county, where the action was brought. It is alleged that the defendant company owned and operated a road over and across the plaintiff’s farm, describing it, in Reno county, Kansas, and that the defendant killed plaintiff’s cow “on the said railway track of said defendant, and by the operation of said railway.” No other railroad or railway track is mentioned in the pleadings except the one through the plaintiff’s farm, which is alleged to be in Reno county.
It was found by the jury that the cow was killed by a train operated upon the line of the Wichita & Colorado railway, but that it was killed by a construction train operated and controlled by Guy Phillips. He contracted to build the railway for the company for a stipulated consideration, and at the time the cow was killed the road was incomplete. The company complains because the court refused to receive in testimony the contract between the company and Phillips, which was offered for the purpose of showing that the killing oc
It is claimed by the company that, because the cow was killed by the construction train, which was operated and controlled by the contractor, it cannot be held liable for damages. The record shows that the company was, the owner of the road, and was engaged in its operation. The fact that the road was incomplete, or that the company permitted Phillips to run a construction train over it, will not absolve it from liability. It was not inclosed with a lawful fence, and the statute casts a liability upon the company for cattle killed or injured by the engine or cars on such railway, “and that this does not require that such engine and cars be owned and operated by the company, was decided in the case of K. C. F. S. & G. Rld. Co. v. Ewing, 23 Kas. 273.” (K. P. Rly. Co. v. Wood, 24 id. 619. See, also, Railway Co. v. Curl, 28 id. 622.) Under the cases cited, the contention of the plaintiff in error cannot be sustained, and there was no error in refusing the instruction which was requested, or in denying the motion of plaintiff in error for judgment upon the findings of the jury.
The objections made against the admission of testimony are not good. The company contends that the verdict is not sustained by sufficient evidence. The testimony, though very weak, tends to sustain the claim of the defendant in error that
The costs in this court will be divided between the parties.
Reference
- Full Case Name
- The Wichita & Colorado Railway Company v. W. E. Gibbs
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- 3 cases
- Status
- Published