Freeman v. Missouri Pacific Railway Co.

Citations

• 101 Kan. 516
• 167 P. 1062
• 1917 Kan. LEXIS 134

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Separate Actions — Consolidated—Aggregate Amount of Recovery— 'Jurisdiction of Supreme Court. Three separate actions against the same defendant brought in the justice court, each for less than $100, were appealed by the defendant to the district court, where on defendant’s motion, the actions were consolidated and tried as one and judgment rendered in plaintiff’s favor for $180, and costs. Held, that plaintiff having made no objection to the consolidation of the actions for the purpose of trial, it is too late to urge that this court has no jurisdiction, on the ground that there are three separate actions, each for less than $100.</p> <p>2. Defective Cattle Guard — Cattle on Right of Way — ■Mitigating Damages — Duty of Owner of Cattle. In an action to recover damages for injuries to cattle escaping from a pasture by reason of a defective cattle guard maintained on its right of way by the defendant, the plaintiff proved sixteen separate escapes of the cattle and recovered damages of $1.00 per head for each time they escaped and for the cost and expenses of returning them to the pasture. Held, that the doctrine that one who is injured by the wrongful act of another can hot remain inactive and allow increased damages to accrue and recover them from the wrongdoer, when at slight expense he could have averted the damages or reduced the amount thereof (Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579), did not require plaintiff to go upon defendant’s right of way and fix the cattle guard after defendant’s refusal to comply with his request to repair it, nor require plaintiff to employ a herder to prevent the cattle from escaping until such time as the defendant repaired the cattle guard.</p> <p>3. Same — Element of Damages. In the action described in the foregoing paragraph the plaintiff was not entitled to recover expenses incurred in going to and from his residence, which was five miles from the pasture, in order to return the cattl