The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-11-12
he Atchison, Topeka & Santa Fe Kan
way Company, Appellee.
Appeal from Harper County.
RE-NErR SEI

The Atchison, Topeka & Santa Fe Rail
way Company, Appellee.
Appeal from Harper County
REVERSED.
Syllabus. B. the Court Mason, J.:
L Under statute requiring Taliroaa
company, upon demand of an adjoining
landowner, to fence its right OF way
where this is necessary to complete an en-
closure if the company under an agree
Tnent with the land owner builds and
maintains such fence there is no occasion
for q demand.
,. Where after the building OF suGh
fence under such circumstances the rall-
road and land change ownership and the
new railroad company continues to mann
tain the fence, rebuilding and repairing
it from time TO time, the situation is the
same as though the fence had been Dullt
by the new company in compliance with
a demand by the new owner or the lanu-
,. Where a railroad company is uhoer
legal obligation to fence its track. II Is
liable for the losses of an adjoining land
owner. occasioned by the escape OF ms ms
cattle from an enclosure, due to its
negligently allowing the fence to De IN
bad repair, although they are not injured
upon the right OF way.
/ Assuming that the right OF the legis-
lature to require a railroad company 10
fence its right Of way is based solely upon
the consideration that such 1enclns may
he deemed necessary to diminish the dan
ger of injury to animals by the operation
of trains, and of injury to persons ana
property resulting from trains colholne
with animals, it is competent as a means
of enforcing such requirement to MAKE
the company liable for losses caused to
the land owner by the escape or his cattle
through a defective fence, although they
receive no injury while upon the right
of way. ..,.-,,,
; Where the employees Of a railway
con1pany while engaged in rebuilding
rfgbt of way fence which the company
is under an obligation to maintain re
move a portion of 1T and erect IeInpoI-
arv barrier, by reason OF the 1nSu1Ilclency
of which cattle escape and are injured,
the owner is not guilty OF contrlputory
negligence as matter OF law IN ialnhS
TO remedy the defect himself, although
knowing of it's existence, where ne mas
reason to believe that the companys en-
Dlovees. although absent from the place
at the noon hour, will shortly resume
work and coTGplete the repairs.
g. Where the jury are asked what there
was under such circumstances to prevent
the owner from making the enclosure
"a fe in the exercise of ordinary care, ana
1-eDIv that he expected the railway en-
DlOvees to return shortly and fix the renee
and that for him to have done so himself
would have been to exercise extraordinary
care these answers are responsive ana
are consistent with a general verdict mold
ing the company liable for negligence
Where a defendant against whom a
general verdict has been rendered files
. motion for a judgment upon the special
findings and also one for a new trial,
and the court suStainS the motion FOR
Judgment in favor of the defendant, ana
SOLELY because of this ruling denies the
motion for a new trial. while finding that
the verdict was contrary to the evidence,
and 1lpon appeal the order giving Judg-
ment for the defendant Is reversed the
trial court should then pass upon the
motion for new trial upon its merits.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
TSealI Clerk Supreme Court.