Henry v. Atchison, Topeka & Santa Fe Railway Co.

Citations

• 83 Kan. 104
• 109 P. 1005
• 1910 Kan. LEXIS 478

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Stare Decisis — Erroneous Decision on First Review Maybe Corrected on Second Appeal. Ordinarily a question considered and determined on the first appeal of a case is deemed to he settled and not open to reexamination on a second appeal, but it is not an inflexible rule, and if the prior decision is palpably erroneous it is competent for the court to correct it on the second appeal.</p> <p>2. -Point in the Record of First Appeal Not Considered —Determination on Second Appeal. If the point, though involved in the record of a first appeal, is not brought to the attention of nor considered by the court, its decision then made does not preclude the consideration and determination of the point when presented on the second appeal.</p> <p>3. Proximate Cause — Wrongful Refusal by Carrier■ to Deliver Goods on Demand — -Subsequent Destruction by Act of God. A railway company transported goods to their destination and notified the owner to come and take them away. In response to the notice the owner promptly called at the freight depot, tendered the charges due thereon and demanded the delivery of the goods, but the railway company refused the de- . mand. One day thereafter an unprecedented flood occurred, which damaged the goods. Held, that by the refusal of the demand and the wrongful detention of the goods the railway company held them at its own risk and was responsible for the loss occasioned to them by the flood.</p>