Nelson v. St. Louis & San Francisco Railway Co.

The opinion of the court was delivered by Johnston, J.: This action was brought by E. H. Nelson before a justice of the peace against the St. Louis & San Francisco Railway Company, to recover damages alleged to have been sustained through the failure and neglect of the company to construct cattle-guards at the points where the defendant’s road enters and leaves the plaintiff’s fenced premises. In his bill of particulars, he alleged in substance his ownership of the land; that it was fully improved and fenced; the building of the railway through the same; and that for more than three years the company had neglected and refused to erect and maintain cattle-guards at the point where the railway enters his pasture, by reason of which he had lost the use of the pasture; and that during the three years he and his family had been compelled to expend time and labor in guarding his cattle and horses to prevent them from leaving the pasture and trespassing upon the lands of others. He asked damages for the loss of the pasture, and for the time and labor expended in guarding his stock, in the sum of $290. An appeal was taken to the district court by the defendant, where, [172] on the defendant’s motion, the court required the plaintiff to amend his bill of particulars by alleging the number of days he guarded the cattle during each year, who guarded the same, and the value of such services for each year separately. At the opening of the trial, the court sustained an objection to the introduction of testimony, upon the ground that the plaintiff’s bill of particulars did not set forth a cause of action in his favor and against the defendant, and instructed the jury to return a verdict in favor of the defendant. Error is assigned on these rulings. The facts alleged by the plaintiff, if proven, are certainly sufficient to warrant a recovery in his favor. The contention of the railway company is, that Nelson cannot recover for the loss of the use of his pasture, nor for guarding his own stock to prevent .them from escaping from his pasture. It is said that the object of the law is to protect the land-owner from the trespasses of the animals of other proprietors, and it appears to be conceded that, if Nelson had incurred necessary expense in guarding his pasture or crops against the trespassing animals of his neighbors, he could recover for the same; but it is contended that this is the extent for which a recovery can be had. No such limitation is found in the provisions or purpose of the statute. An injured party can recover all damages necessarily resulting from the neglect and refusal of the company to perform its statutory duty by completing the plaintiff’s enclosure. The loss of the pasture, or the expense necessarily incurred in an effort to prevent the cattle from straying from the pasture, is the direct consequence of the company’s neglect and refusal, for which he is as much entitlen to recover as he would be for the expense incurred in preventing the incursion of the trespassing animals of other proprietors upon his premises. The same principle of compensation applies in the one case as in the other. This was determined in the case of C. K. & N. Rly. Co. v. Behney, 48 Kas. 47; same case, 28 Pac. Rep. 980. In that case, it was alleged that the company had built its railway through a pasture, and had failed and refused to make and maintain [173] cattle-guards where the road entered and left the pasture, and it was held that “the plaintiffs had a right to show that it was necessary to herd their cattle in order to prevent them from straying away from their pasture, and to avoid the loss of their pasture, and possibly also the loss of their cattle, and to prevent the cattle from injuring the plaintiff’s own property outside of their pasture, and also to prevent their cattle from trespassing upon the property of others.” Following the rule in that ease, it must be held that the plaintiff’s bill of particulars in this case set forth a cause of action in his favor, and that the court erred in sustaining an objection to plaintiff’s evidence, and in directing a verdict in favor of the defendant. The judgment will be reversed, and the cause remanded for another trial. All the Justices concurring.