St. Louis & San Francisco Railway Co. v. Kinman , 9 Kan. App. 633 ( 1899 )

The opinion of the court was delivered by

Dennison, P. J.:

This action was commenced in the district court of Greenwood county by the defendant in error to recover from the plaintiff in error for loss and damage to cattle. The cattle of Kinman went through a gate placed in the fence of the railway company at a private crossing used by Kinman, and some of them were injured so badly that they had to be destroyed, and some were injured but finally recovered. The defendant alleges, that the fastening was insufficient to keep the gate shut, and that the gate came open and the cattle went upon the track of said railway company and were injured by one of its trains. Verdict and judgment were for the plaintiff below in the sum of $119, and the railway company brings the case here for review.

The plaintiff in error contends that there was no evidence that the fastening to the gate was defective. The evidence shows that the gate did not reach to the post to which it was fastened; that ’a wire was fastened around the. gate standard and through the eye of the hook, and the other end of the hook was bent so as to push down into the staple in the post; that there was nothing to prevent the wind from swinging the gate back and forth except the said hook, staple, and wire. The jury found the fastening insufficient and the evidence abundantly supports the finding. It is also contended that there was no evidence of a sufficient demand. Kinman said to Spaulding (who was by the pleadings shown to be the duly authorized agent of the railway company to settle and pay claims against id for stoek killed, or injured) that he wanted pay for killing the stock. This was a sufficient demand.

Kinman also made a demand in writing which was sufficient. The cattle were killed and crippled on July 25, 1888. An action to recover the damages was commenced on October 2, 1888. Judgment was rendered in favor of Kinman May 31, 1889, which judgment was reversed and remanded by the supreme court in October, 1892, and at the January, 1893, term of the district court the action was dismissed without prejudice. Under section 17 of chapter 95, General Statutes of 1897 (Gen. Stat. 1899, § 4267), Kinman could commence a new action at any time within one year after the dismissal of the former action, but he could not extend the time by failing to make the demand. If no demand had been made prior to the bringing of the action in October, 1888, the action was prematurely brought. An action prematurely brought prevents the statute of limitation from running. (Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22.) Clearly, where the demand is made thirty days prior to tne commencement of the action, and the action is commenced within one year after the dismissal of the former action, the demand is made in time, and the action is not barred.

The admissions made during the trial justified the instructions complained of.

The judgment of the district court is 'affirmed.