Atchison & Nebraska Railroad v. Harper

1. Proof of Value; Indirect and Comparative Evidence, Inadmissible. In an action brought by the owner of a colt, under the provisions of ch. 94, laws of 1874, to recover damages from a railroad company for wounding the animal on the line of its road, where the plaintiff has other and better evidence at hand as to the value of the colt for which damages are claimed, it is error to allow proof, against the objections of the railroad company, that the injured colt compared in appearance with the colts of another person, and against like objection to admit proof of the value of such other colts to fix and determine the value of the colt injured by the railroad company. 2. Stock Law of 1874. The decision in K. P. Ply. Co. v. Mower, 16 Kas. 573, that ch. 94 of the laws of 1874, relating to the killing or wound" ing of stock by railroads, is constitutional and valid, considered, and affirmed.

Error from Doniphan District Court. This action was commenced by Harper in a justice’s court, alleging in a bill of particulars, “that the Railroad Company was owner of a line of railroad over S. J of S.W. -j- of section 31, T. 3, R. 21,” onto which the plaintiff’s colt wandered for want of a fence, without the owner’s fault, and was there killed; that demand for payment had been made, and asking judgment for $40, the value of the colt, and $25 fee for the plaintiff’s attorney. On appeal to the district court, and trial therein at September Term 1876, Harper had judgment, and the Railroad Company brings the case here. contended, that it was not competent evidence to allow one witness to testify to comparative value of animals,' and then to allow another to testify to the actual value of colts other than plaintiff’s. Such case does not come within the rule of hypothetical cases put to scientific witnesses. 2. Plaintiff tried this case upon the theory that he should recover upon the showing, that he owned a colt, his private property, and defendant owned a railroad, its private property, and his land and defendant’s land being inclosed in a joint inclosure, into which plaintiff had turned his colt on his land, and defendant was working its locomotive on its land, and without any fault on its part, its locomotive had accidentally killed his colt while trespassing on defendant’s land, for not only the value of the colt but for $25 additional, because the value of the colt was not paid when he asked for it, and obtained judgment thereon. Unless railroad corporations have been outlawed by the act of 1874, such judgment is flatly in the face of the decision of this court in Baker v. Robbins, 9 Kas. 303; U. P. Rly. Co. v. Rollins, 5 Kas. 174, 182-187; Caulkins v. Mathews, 5 Kas. 191, 199. The fee-simple owners (as admitted by petition as to defendant’s land, and on trial as to plaintiff’s land,) fenced in common, and thereby each owner undertook to take care of his own land, and his own stock; and as said in the Rollins case, p. 183, neither land-owner is liable to the other except for wanton injuries, which is held in the Baker-Bobbins case to exist where each owner allows his stock to trespass on the other’s land. The partition-fence laws of this state are still in full force unless repealed by implication (as to railroad companies only,) by act of 1874; and such .repeal even as to railroad companies is forbidden by the constitution, § 16, art. 2. But the stock act of 1874 does not attempt to cover this kind of cases; it only requires protection to be given to wandering stock whig]},^^,authorized to wander, or to make good the injuries. It does not apply to lands not the subject of fencing; (49 Mo. 199; 18 Kas. 462;) nor, for same reason, to stock not subject to be fenced against. Can the owners of hogs recover, under such act, for hogs which the owners have allowed to wander upon a railroad track, or have passed under a three-board fence put up by the railroad company, and been killed? 3. We think that this court erred in deciding the case of K. P. Bly Co. v. Mower, 16 Kas. 573, misapplied the true principles governing in such case, and certainly to the extent of sustaining such judgment for attorney-fees additional to the actual value of injury claimed. Since that decision, the supreme court of Nebraska in A. & N. Bid. Co. v.- Baty, Oct. 1877, under a similar constitution, on a like statute, has decided that statute unconstitutional. This court holds the imposition of the payment of a sum. in excess of actual injury, to be a “police regulation”—the Nebraska court, “a penalty.” Can such imposition, “as a part of the police power of the state,” be other than a penalty? Is not the payment of “ an attorney-fee,” (whether any attorney was in fact employed, or not,) a penalty for the failure to perform the terms of such “act?” Where such terms have been complied with, such payment (fine) is not imposed. All the cases cited in 16 Kas. 577, sustain the law upon that ground. Cooley Const. Lim., p. 580, says that the liability can exist only by express statute. And see, 25 111., 143; 49 Mo., 440; 20 Wis. 254. The Kansas act of 1874 is obnoxious to the well-settled rale that, “It may be considered a well-settled rale in respect to the operation of the laws, that corporate companies and natural persons are placed precisely on the same ground, and this is the true ground, and the only one, upon which equal rights and just liabilities and duties can be fairly based.” To destroy any other property in like manner, costs no penalty. To unjustly prosecute a suit, costs no fine of $25; while to unsuccessfully defend a case under this statute, costs such penalty, with or without an attorney as apology therefor. Such legislation is more than a tub thrown to the so-called “ granger whale,” for if sustained, will continue to roll faster, crushing every principle of equality and justice in its track. Cities vote bonds to induce railroads, and when built, repudiate their payment. Individuals borrow money, and contract to pay an attorney-fee on foreclosure, and before the debts mature, legislation is invoked to prevent collection. We submit that the attorney-fee is a penalty which cannot be sustained, unless this court is prepared to say, in the language of the Nebraska case, above cited, that “the legislature may apply the same principle to simple debt, and therefore if upon demand by the creditor the debtor fails to pay within a certain time, he may, by legislative decree, be compelled to pay double, treble, or a hundred times the amount of the debt, according as the legislature may decree by legislative enactment.” submitted, 1st, that the court below was justified in overruling the objection to the testimony of witness Tracy because the attorney for the plaintiff in error did not state any ground of objection to the testimony. (9 Kas. 627.) 2d, the same in regard to Watkins’ testimony. But this testimony was admissible in any event. 21 Minn. 56.