Missouri Pacific Railway Co. v. Gill

Opinion by Green, C.: This was an action brought by T. M. Gill against the Missouri Pacific Eailway Company, to recover damages for injuries to a mare owned by the .former on October 20, 1886. The plaintiff alleged the failure of the railway company to fence its railroad, and also negligence upon the part of the company in sounding the whistle, by reason of which the mare of the plaintiff became frightened and ran against a barbed-wire fence, and was injured. It seems from the evidence that the mare, with four other horses, was grazing north of the railroad track, in a pasture which lies principally on the south side of the right-of-way, but also extends a short distance north of it, leaving only a narrow strip between the railroad and the fence on the north [446] side of the pasture. There was a young hedge inclosing the pasture, with a barbed-wire fence on the inside of it, and when the railroad was constructed through the north side of the pasture the company made a barbed-wire fence from the northeast corner of the pasture south to the track. The strip north of the track was in blue-grass, and as the horses were grazing there, near the track, a construction train approached from the west, and the engineer sounded the whistle, the first blast of which Scared the animals, and they all ran eastwardly, the mare in the lead, broke through the barbed-wire fence forming the east line of the pasture north of the track, and she was thereby injured. The case was first tried before a justice of the peace, and then appealed to the district court, and each time resulted in a judgment for the plaintiff. In the district court the plaintiff recovered a verdict for $100 damages and $35 attorney’s fees. The railroad company brings the case here, and insists that there is neither common-law nor statutory liability. The verdict and judgment of the district court are based upon the theory that there was a statutory liability, and it is unnecessary for us to discuss the question of the common-law liability, if the judgment can be upheld upon the theory upon which this case was tried and determined. The first claim made is, that there was no legal demand made upon the railroad company 30 days before the suit was brought. The plaintiff below commenced his suit on the 22d day of March, 1888. He testified that he served notice on the agent of the company on the 9th day of January, 1888. It is true that when he offered a copy of the demand in evidence it was rejected, because it was not the best evidence. He had without objection testified that he had given the company a written notice, and afterward testified that he made an oral demand for his damages upon the ticket agent. The jury, in answering the special questions, found that the plaintiff had made a demand in writing, as well as an oral or verbal demand. It is now insisted by the plaintiff in error that, [447] because the court excluded the copy of the written demand because it was not the best evidence, the answers of the jury to the special questions in regard to the demand were contradictory, and the court should for that reason have granted a new trial. There was evidence that the plaintiff made both a written and verbal demand upon the agent of the railroad company more than 30 days before the commencement of the action. The jury having found that a demand had been made, it is immaterial whether it was in writing or not. Either is sufficient. (C. B. U. P. Rld. Co. v. Butman, 22 Kas. 640.) It is further argued, that the essential facts do not justify a recovery in this case; that the animal was not injured in operating the railroad, and as a direct result of such operation. The jury found that the mare was grazing in the pasture on the railroad company’s right-of-way, and that she was injured several feet north of the track, by running into a barbed-wire fence which ran at right angles with the railroad from a culvert to the fence on the north side of the pasture. While the precise question has never been passed upon by this court, it has been held, in the case of A. T. & S. F. Rld. Co. v. Jones, 20 Kas. 527, that where an animal got on to the railroad track at a place where it should have been but was not fenced, and was frightened by an approaching train and fled along the track until a bridge was reached, and was either thrown forward or jumped onto the bridge and fell between the ties and was thus fatally injured, the railroad company was liable under the statute. In delivering the opinion of the court, Judge Brewer said: “Again, the liability is not limited to cases where the animal is killed or wounded by the ‘engine or cars’ — which might perhaps be construed as referring solely to actual collision — but extends to those cases where the animal is injured ‘ in any other manner whatever in operating such railway.’ This last clause is very broad, and clearly covers a case like the present. Whether the engine struck the mare or not, the in [448] jury resulted directly from the operating of the railway. Of course, the mere fact that she was injured on the track would not be conclusive. An injury might happen from the act of strangers, or the wanton acts of employés of the road, outside of the scope of their employment. If a brakeman, seeing a mare on the track, had drawn his revolver and shot her in mere wantonness, the company would not be liable. Such act might be done while operating the railway, but not in operating it. It is like any other wanton and willful act of employés outside the scope of their employment, casting no liability on any one but themselves. But when the injury occurs in the actual operating of the railway, and as the direct result of such operating, then the statute applies. Here the company was running one of its trains. An animal is on the track, permitted to come on through the lack of a fence along the track at a place where it ought to be fenced. The approaching train frightens it, it flees along the track to avoid the danger, and in that flight either falls or is thrown by the engine into the open spaces of a tie bridge, and is injured. Clearly, the train acting upon the animal’s sense of fear, and the open space of the bridge, are the direct causes of the injury. It results from and occurs in the operating of the railroad.” In this case, instead of being on the track, the mare was on the right-of-way, became frightened by the sound of the whistle, ran along the right-of-way by the side of the track, and into the barbed-wire fence. We think, upon the authority of the above case, the company is liable, and the judgment of the district court should be affirmed. By the Court: It is so ordered. All the Justices concurring.