Breitenbach v. Anthony & Northern Railway Co.

Citations

• 107 Kan. 564
• 193 P. 312
• 1920 Kan. LEXIS 122

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Track Dividing Inclosed Pasture — Failure to Maintain Proper Crossing, Fences and Cattle Guards — Damages—Pleadings. Where a railroad company has constructed its railway track across a farmer’s fenced pasture land, cutting it in two, but failed to construct an underground crossing to connect the divided parts of the pasture as it had agreed to do, and failed to construct the statutory cattle guards at its entrance to and exit from the pasture, whereby the farmer’s live stock escaped from the pasture, and the farmer was compelled to abandon the use of one part of the pasture, a petition reciting these pertinent facts was sufficient as against a demurrer.</p> <p>2. Same — Measure of Damages — Minimizing Damages. The evidence showing the expense of providing pasture elsewhere to replace that which the farmer was compelled to abandon because of defective cattle guards was sufficiently accurate to determine the amount of the' damages sustained through the loss of the use of the pasture, and this loss was a proper item of damages; and the farmer’s restraint of his cattle within a fenced portion of his pasture, and his feeding them in a lot for a longer season than would have been necessary if all his pasture had been available was a sufficient showing of diligence on his part to minimize his damages.</p> <p>3. Same — No Error in Refusing Requested Instructions. Two instructions which defendant requested and which were refused, examined, and held that the subject matter of one of these was adequately and more pertinently given by the trial court, and that the other was properly refused.</p>