Kauffman v. Kansas City, Pittsburg & Gulf Railroad

Smith, P. J. This action is based on section 2611, Revised Statutes. The petition contained five separate and distinct counts, each alleging that at a certain time and place the defendant had failed to maintain lawful fences along the sides of its road, where the same passed through and along cultivated and inclosed fields, etc., in consequence of which a certain herd of cattle strayed from adjoining fields and came across defendant’s right of way and trespassed on plaintiff’s land and damaged his crop of corn thereon growing, etc. The answer put in issue the allegation of each count. There was a trial and separate finding by the jury of $18 damages on each count of the petition. There [162] was judgment- given accordingly, from which defendant has appealed. The uncontradicted evidence showed that defendant’s fences were not such as are required by the statute. Nor does the evidence leave any room to doubt that the cattle strayed from the defendant’s right of way onto the plaintiff’s field and there destroyed his growing crop of corn. It is alleged in the several counts of the petition that the cattle invaded the plaintiff’s field on the third, fifth, seventh, ninth, and eleventh days of September, and that the damage done on each occasion was $30. The evidence tends to show that plaintiff’s field contained from thirty to thirty-five acres, and that the yield of corn growing thereon was about forty bushels per acre, and that the same Avas worth thirty cents per bushel. It further tended to show that about one third of the crop had been destroyed by the cattle. It is clear from this that the value of the crop destroyed was at least $90, the aggregate amount found by the jury. But it is contended by defendant that the evidence does not disclose the exact amount of damage done by the cattle by each separate trespass. There was evidence tending to show that at each trespass the cattle remained in the plaintiff’s field about an equal length of time. The jury, no doubt, estimated the damages done by. the cattle to have been the same at each trespass. They accordingly must have ascertained the whole amount of the damage done to be $90, and this amount they apportioned equally among the five counts. This ascertainment was authorized by the evidence. It was fair and just. The amount so found was no more than the evidence showed the plaintiff was entitled to recover for the loss of his crop. The defendant was in no way harmed by the result. It is true that one witness testified that on one [163] occasion lie saw some cattle — how many he did not remember — stray through the plaintiff’s gate into his field, but how long they remained, or what damage, if any, they did, he did not know. It is not believed that this was sufficient evidence to justify the giving of the defendant’s fourth and fifth instructions, in relation to the mingling of damages. The plaintiff’s first and second instructions told the jury in effect that, if, in consequence of the neglect of defendant to perform its statutory duty in respect to its fences, and on account thereof, the cattle escaped from adjoining inelosures and came upon the field of plaintiff and did damage to his corn, their verdict should be for the plaintiff. But the court, by its third instruction for plaintiff, told the jury to make a separate finding on each count of the petition, and this, we think, obviated the objection to which plaintiff’s instructions would otherwise have been subject. The instructions given for both plaintiff and defendant, when taken in their entirety, we think fairly submitted the issues to the jury. The judgment was clearly for the right party, and must be affirmed. All concur.