Atchison, Topeka & Santa Fé Railroad v. Cruzen

The opinion of the court was delivered by Horton, C. J.: On June 29, 1883, a cow belonging to the defendant in error, plaintiff below, was injured in the county of Leavenworth by an engine operated on what is commonly known as the Leavenworth, Topeka & Southwestern railway. On August 9, 1883, plaintiff below brought his action before a justice of the peace of Leavenworth county to recover damages for the injury to his cow and for attorney’s fees, against the Atchison, Topeka & Santa Fé railroad company, under the stock law of 1874. After judgment was rendered by the justice of the peace, the railroad company appealed to the district court. Trial was had in that court, and judgment rendered against the company for $55 damages, and $30 as attorney’s fees. The railroad company contested the case upon the ground, among others, that the Leavenworth, Topeka & Southwestern railway was not owned, leased or assigned by or to the Atchison, Topeka & Santa Fé railroad company, and that said company did not operate the line in Leavenworth county. As tending to show that the Atchison, Topeka & Santa Fé railroad company was the lessee of the Leavenworth, Topeka & Southwestern railway, and that one A. B. Tanner was the general agent of the Atchison, Topeka & Santa Fé railroad company at Leavenworth, W. W. Black was produced as a witness on the part of the plaintiff below, and testified that the circular and map which he presented was obtained by him at the office of the Leavenworth, Topeka & Southwestern [720] railway company; that this circular, with a number of others like it, he found at the office; that they appeared to be there for public distribution, as he frequently saw circulars like it at the same place. Thereupon this circular and map was received in evidence, over the objection of the railroad company. This circular and map purported to be put out by the Atchison, Topeka & Santa Fé railroad company as an advertisement of its route, and contained what purported to be a map of the Atchison, Topeka & Santa Fé railroad, leased lines and connections. It also purported to contain a list of the agents of the company, and among others the name of A. P. Tanner as general agent at Leavenworth. Under the topic of “Old Mexico,” it contained the statement: “To reach Guay mas, take the Atchison, Topeka & Santa Fé railroad at Kansas City, Leavenworth, or Atchison,” etc. The circular also stated: “Having its eastern terminus at Atchison and Leavenworth, Kansas,” etc. This circular or folder was not obtained in any office of the Atchison, Topeka & Santa Fé railroad company;' and as it was not proved that the company either issued it or distributed it, its admission as evidence was erroneous. The company objected to its introduction, upon the ground that it was incompetent, irrelevant and immaterial, and on the further ground that it was not shown to have been put out by it. The objections should have been sustained. Counsel for plaintiff below suggest that even if there was error in the admission of the circular or folder, there was evidence afterward admitted which cured the error; and even without the folder, that there was plenty of evidence to sustain the verdict. In view of the testimony of A. A. Robinson, assistant superintendent and chief engineer off the Atchison, Topeka & Santa Fé railroad company, that at the time of the injury complained of the latter company had not been the owner, assignee or lessee of any railroad in the county of Leavenworth, and had not been the owner, assignee or lessee of the Leavenworth, Topeka & Southwestern railway; and [721] in the absence from the record of any evidence showing that the circular or folder was brought home in any manner to the railroad company or its agents, we cannot say that the error was either cured or immaterial. Really we cannot say what effect this evidence may have had on the minds of the jury. For aught we know, it may have been controlling with them in the rendition of the verdict. The judgment of the district court must therefore be reversed, and the cause remanded for a new trial. All the Justices concurring.