ADDENDA.

BEING A STATEMENT OF POINTS DECIDED IN CASES NOT REPORTED.

In an action against a railroad company for killing a cow, there was evidence to show that the cow was found beside the defendant's track, torn and mutilated, and that there was blood and cow's hair on the track near by. Held, sufficient to warrant the court in submitting to the jury the question how the animal came to her death.

If the verdict is warranted by the evidence, this court will not reverse because the trial court incorrectly declared the rule of damages.

The order of argument is a matter to be regulated by rule of court. Where plaintiff's counsel, being entitled to make the opening address to the jury, declines to do so, it will not be error of which the defendant can complain if the court refuses to allow his counsel to close.

It is not necessary to recovery, in an action for the killing of stock founded on the 43d section of the railroad law, (R. S., & 809,) to show that three months have elapsed since the completion of the road at the place where the killing occurred. Blewett v. Wyandotte R. R. Co., 72 Mo. 583.

In an action under the railroad stock-killing law of 1874, (Comp. Laws of 1879, p. 784,) it was shown that the demand, alleged to have been made by the plaintiff of the railroad company for the value of the stock alleged to have been killed, was made in writing, and only in writing. This demand was proved on the trial of the case, only by the introduction in evidence of a copy of the written demand; and this was done over the objections of the defendant, but by the permission of the court, without any foundation for the introduction of secondary evidence having first been laid. Held, Error.

In this same action, the defendant railroad company alleged in the third defence of its answer, by way of counter-claim, that the plaintiff's said stock was knowingly and intentionally permitted to run at large, and on the defendant's premises, in violation of the herd law of the State (Comp. Laws of 1879, p. 933, et seq.), whereby the defendant's train was wrecked, and great damage was

thereby done to the defendant. The defendant did not admit that it was itself guilty of any fault or negligence, its pleadings did not show that it was, and it denied in its answer all allegations of the plaintiff charging it with fault or negligence. Held, That said third defence was not defective merely because it failed to allege that the defendant was itself free from all fault and negligence. The defendant's fault or negligence is matter to be shown by the other party. Central Branch U. P. R. R. Co. v. Walters, 24 Kansas R., 504.

It is as much the duty of a railroad company to fence against animals on a highway as against animals in adjoining fields or woods, and proper cattle-pits at highway crossings are necessary, to prevent animals passing from the highway on to the railroad track.

Instructions, in effect, that if animals went on the railroad track at a crossing of the highway, and were killed some distance from the highway, the railroad company would not be liable upon the ground of the want of a fence, were properly refused.

Where a verdict is clearly in accordance with the evidence, no harm can result to the appellant because a charge given to the jury was not applicable to the evidence. Evansville, etc., R. R. Co. v. Barbee, 74 Ind. 169.

A railway company is not liable under the statute for interest on the value of stock or cattle killed by their locomotives or cars. The value of the stock killed or injured at the time of the killing is the measure of damages under the statute. Houston, etc., R. R. Co. v. Muldrow, 54 Texas, 233.

Where the evidence tending to show a demand for the killing of stock, under the provisions of chapter 94 of the Laws of 1874, is conflicting, and sufficient evidence is given on the trial to sustain the demand, the finding of the trial court that a demand was made will be upheld.

Where a railroad company is not guilty of negligence in failing to protect its track from swine in a township where they are not permitted to run at large, and it appears from an agreed statement of facts that a hog was killed by the negligence of the railroad company in such township, and it further appears that the negligence of the owner in permitting the animal to run at large, in violation of § 46, ch. 105, Comp. Laws 1879, contributed directly to the injury, held, the negligence of the defendant was offset by the negligence of the plaintiff, and the owner of the animal could not recover for his loss.

The provisions of § 1, ch. 93, Laws of 1870, (§ 28, ch. 84, p. 784, Comp. Laws 1879,) have not wiped out contributory negligence as a defence in actions against railroad companies for damages to persons or property, resulting from negligence on the part of such

companies. Kansas City, etc., R. R. Co. v. McHenry, 24 Kansas

501.

Plaintiff was the owner of a quarter-section of land, through which ran the defendant's railroad. The quarter-section as a whole was inclosed with a legal fence, but there was no fence along the defendant's road separating the right of way from the rest of the quarter-section. The plaintiff turned his animal loose in this quartersection, and during the night-time it was injured by the defendant's cars. The night herd law was in force in the township in which the land was situate. Held, That while the plaintiff may be said to have confined his animal within the meaning of the statute as to all parties except the defendant, an owner of part of the premises within the inclosure, he cannot be held to have so confined it as to the defendant, and hence, there being no negligence on the part of the defendant, except in not having a fence along its right of way, he cannot recover for the injury. The obligation of the plaintiff to confine his animal, and that of the railroad to fence its right of way, are of equal force, and he who disregards the one cannot recover of the other for injuries resulting alone from their concurrent disregard of statute obligations. Kansas Pacific R. R. Co. v. Landis, 24 Kansas, 406.

In an action for double damages for killing stock at a point where a railroad company is obliged to fence its road, service of the statutory affidavit and notice must clearly appear. Evidence of service of such affidavit and notice, in this case, held insufficient. The fireman of the engine killing the stock testified that it occurred at a public crossing. Held, it was proper cross-examination to inquire of him as to the speed of the train at the time. The jury were instructed that the company had a right to fence its track except at public crossings. Held, that the fact that the instruction did not except depot and station grounds, the accident occurring away from a station, was simply error without prejudice. Verdict held not against evidence. Keyser v. Kansas City, etc., R. R., 9 N. W. R., 338.

In 1874, the legislature passed a law requiring railroad companies to fence their roads, or be liable for stock killed by their trains. The defendant corporation was then in existence. In 1876 its property was passed into the hands of a receiver, duly appointed. In 1879 the receiver was discharged, and the property returned to the possession of the corporation. Just before this was done, and while the possession of the receiver continued stock belonging to plaintiffs was killed by the railroad trains, at a place where the road was unfenced, and where it might have been fenced. Held, That an action might be main

tained against the corporation for the enforcement of the liability imposed on it by said statute.

Where the testimony is not preserved, and the bill of particulars alleges, and the findings show, in general terms, that the road was unfenced, and yet could have been fenced at the place where the stock was killed, and nothing appears as to the condition of fencing at any other place, or as to where the stock went upon the track, held, sufficient in this respect to sustain the judgment against the corporation.

No attorney-fees can be allowed for defending in this court a proceeding in error to review a judgment rendered under said law of 1874. Kansas Pacific R. R. Co. v. Wood, 24 Kan. 619.

Where in an action under the stock law of 1874 to recover damages for the killing of a horse by the train of defendant, the case coming to this court upon simply the findings of fact and without any of the testimony, the findings read, "That said plaintiff then resided about three quarters of a mile from the railroad of the defendant in the county of D. and State of Kansas, and about two and one half miles north of Baldwin City in said county and State," and then state the circumstances of the injury, which took place as he was riding toward a spring on the opposite side of the railroad and about seventy-five yards therefrom, held, that a general conclusion and judgment in favor of the plaintiff will not be reversed on the ground that it does not appear that the animal was killed in the county of D.

Where by any fair although not the most obvious construction of the language of the findings, any fact, especially a fact of minor importance, is shown, it will in the absence of the testimony be sufficient to sustain the judgment.

Contributory negligence is matter of defence; and held, that upon the facts as stated in the findings there is not such a showing of contributory negligence as will justify a reversal of the conclusion and judgment of the trial court. Kansas City, etc., R. R. Co. v. Phillibert, 25 Kan. 582.

In an action brought before a justice of the peace, by P. against a railway company, to recover damages under the railroad stockkilling law of 1874, (Comp. Laws of 1879, p. 784), for the killing of a colt, the plaintiff recovered a judgment before the justice of the peace, and the defendant appealed to the district court, where the plaintiff, with leave of the court, and full notice to the defendant, amended his bill of particulars so as to make it allege (which it did not do before) that the plaintiff, more than thirty days before the commencement of his action, demanded of the defendant the full value of the colt, and that the defendant failed and refused to pay anything therefor. Held, that the court below did not err in permitting the plaintiff to make such amendment.

Also, in said case the plaintiff alleged in his original bill of particulars that "said colt was injured and killed by said defendant at a place where said road-bed and railway were not fenced, but ought to have been fenced, as required by law, to keep stock from crossing on, over, along and near the railroad and bed of the defendant; and that said animal was not injured and killed at or near any public road or crossing." Held, Under the circumstances of this case, that said allegation is sufficient with regard to alleging the want of a sufficient fence. Missouri Pacific R. R. Co. v. Piper, 26

Kan. 58.

The owner of cattle killed at a public crossing of a railroad through the negligence of the company's servants, cannot recover in an action based on the 43d section of the railroad law; an instruction submitting the question of negligence in case the jury should find that the killing occurred at such a crossing is, therefore, properly refused, even when asked by the defendant.

Positive evidence should have more weight than the negative evidence of persons having no special facilities for knowing the fact. Sullivan v. Hannibal, etc., R. R. Co., 72 Mo. 195.

Railway companies are at least liable to occupants as well as to owners of adjoining lands, whose cattle are injured upon railway tracks, in consequence of a neglect of the companies to fence. Section 1810, Rev. St. [And it would seem that they are liable to all persons whose cattle are injured through such neglect. Laude v. C. & N. W. Ry. Co., 33 Wis. 640.]

The mere opinion of a witness upon the question whether a certain bank of earth between defendant's track and land occupied by the plaintiff was "as good a protection against cattle as a fence four and a half feet high," is admissible.

Section 1810, Rev. St., provides that no fence shall be required in places "where the proximity of ponds, hills, embankments, or other sufficient protection renders a fence unnecessary to protect cattle from straying" upon a railroad track. Held, that the fact that cattle have, in fact, in a given instance, surmounted an embankment and gotten upon the track, is conclusive that such embankment was not a "sufficient protection."

An error in ruling out testimony is cured where the witness afterwards testifies fully upon the subject.

There was no error in submitting the question of plaintiff's contributory negligence to the jury upon all the evidence, and refusing to instruct them that facts contained in certain hypothetical statements prepared by defendant's counsel, and supposed to conform to the proofs, would show such contributory negligence. Veerhusen v. Č. & N. W. Ry. Co., 53 Wis. 689.

After proof that a cow had been killed by a railroad train, the