Adams v. Chicago, Burlington & Quincy Railroad Company

No. 9467. Adams v. Chicago, Burlington & Quincy Railroad Company. 1. Railway Company — Duty to Fence Line. Statute Construed. Secs. 10, 11, of c. 135 of Acts of 1911, are not effective until the steps prescribed in the previous section of the Act, for adjusting the loss, have been taken. Action to recover the value of live stock killed by the trains of a railway company. The complaint alleged that the company had done none of the things required by the statute. Judgment sustaining the demurrer thereto, Reversed. 2. Trial — Nonsuit. Where the plaintiff produces evidence sufficient to sustain a verdict in his favor, a- nonsuit is error. EtTor to Denver District Court, Hon. John A. Perry, Judge. Department One. Mr. Frank McLaughlin, for plaintiff in error. Mr. E. E. WHITTED, Mr. J. L. Rice, for defendant in error. [MAJORITY — Mr. Justice Teller] Mr. Justice Teller delivered the opinion of the court:. Plaintiff in error brought suit against the defendant in error to recover-the value of certain cattle killed by the said company. The complaint set up two causes of action, the first charging that the cattle were killed because of the defendant’s negligence; and the second counting on the failure of defendant to maintain effective cattle-guards at the public road crossing where the cattle were killed. A demurrer was filed to the second cause of action, on the ground that the action was barred by the provisions of section 10 of chapter 135, Laws of 1911; and that by section 11 of said chapter the action must be brought in the county where the cattle were killed — in this case Morgan County. The demurrer was sustained, and the cause tried on the first cause of action. , A non-suit was granted, and the cause is now before us on error. Since the trial of this cause this court has twice considered and interpreted tire laws above mentioned; and we have held that the provisions , of said sections 10 and 11 are ,not effective and operative until the various steps prescribed in the earlier sections of the act for adjusting the loss have been taken, Section 11 fixes the time within which and the county in which suit shall be brought in case the railroad company fails to pay for cattle killed by it on demand by the owner as in the said law provided. The complaint alleged that the railroad company had done none of the acts required of it by the statute. The limitations in sections 10 and 11 do not apply, and the sustaining of the demurrer, on the grounds named, was error. There was evidence from which the jury might have concluded that some of the cattle killed had passed over the cattle-guards and were on the right of way when struck; also evidence sufficient to establish ownership in the plaintiff. The non-suit was, therefore, improperly granted. The judgment is accordingly reversed. Judgment reversed. Chief Justice Garrigues and Mr. Justice Burke concur.