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ure of the owner's land for a small amount of taxes, for forfeitures are never favored in law and are always prevented if they reasonably can be prevented. In support of the proposition that Sunday should be excluded in such cases, we would cite the following authorities : Goswiler's Estate, 3 Pen. & W. 200; Hammond v. American Mut. L. Ins. Co., 10 Gray, 306; Stryker v. Vanderbilt, 27 N. J. Law, 68; Salter v. Burt, 20 Wend. 205; Cock v. Bunn, 6 Johns. 326; Broome v. Wellington, 1 Sandf. 664; Thayer v. Felt, 4 Pick. 354; Avery v. Stewart, 2 Conn. 69; Douglas v. Rinehart, 5 Kan. 393, 396.
The following cases hold that when the last day falls on Sunday such day is not to be excluded, but is to be counted the same as any other day. Ex parte Dodge, 7 Cow. 147; People v. Luther, 1 Wend. 43.
In the present case, whether Sunday, September 4, 1881, was to be excluded or not, and even if the defendant had demanded the immediate execution of his tax deed, still the plaintiff had the right, under the statutes, to redeem his lots from the taxes on the morning of September 5, 1881, for under the statutes he had a right to redeem his lots from the taxes until the tax deed was in fact executed. But the tax deed was not executed on September 5, 1881, and it could not have been executed so early. on that day as to prevent the plaintiff from claiming his right to redeem his lots from the taxes before the tax deed was executed. But, as before stated, the redemption notice required the plaintiff to redeem his property from the taxes prior to September 4, 1881; that is, on September 3, 1881. Hence, as before stated, the redemption notice was erroneous in not giving the plaintiff the time to redeem his property from the taxes which the law authorizes. And it has been held by this court in at least two cases that a tax deed executed upon such a notice is invalid. Blackistone v. Sherwood, 31 Kan. 35; S. C. 2 Pac. Rep. 874; Hollenback v. Ess, 31 Kan. 87; S. C. 1 Pac. Rep. 275.
As September 4, 1881, was Sunday, we think the owner of the land had the right to redeem his land from the taxes up to and including September 5, 1881. In cases like this, where the last date comes on Sunday, it should be excluded in the computation of the time, and the next day should be included. The rule adopted in this case, of excluding Sunday when the last day of some specified time falls on Sunday, does not apply to days of grace given for the payment of negotiable instruments; for days of grace are usually considered as mere days of grace, and if Sunday should intervene, so as to prevent the party from having more than two days of grace, two would be considered as sufficient. See section 5 of the act relating to negotiable bonds, notes, and bills of exchange. Before the plaintiff commenced this action, he tendered to the defendant the full amount of all the taxes, charges, interest, penalties, and costs due upon
the lots, and we suppose has kept the tender good, and therefore he has the right to avoid the tax deed in the present case.
The judgment of the court below will be reversed, and cause remanded, with the order that judgment be rendered in favor of the plaintiff, and against the defendant, for the lots in controversy, and for costs, and that the defendant receive the amount tendered to him by the plaintiff.
(All the justices concurring.)
(33 Kan. 132)
Atchison, T. & S. F. R. Co. v. GABBERT.1
Filed October 9, 1885. 1. RAILROAD COMPANIES—INJURY TO JACK FROM FAILURE TO FENCE-CONTRIB
Where a person permits his jack, about one year old, to run upon his own premises, which are inclosed with a fence, but through which a railroad, not inclosed with a fence, is constructed and operated, and the jack is unattended by any one, and passes from the plaintiff's premises upon the unfenced railroad track, and is there killed by the railroad company in the operation of its railroad, held, that the plaintiff is not guilty of such culpable, contributory negligence as to prevent his recovering the value of the animal killed ; and this, whether the herd law of 1872 is in operation in the county where the ani
mal is killed or not. 2. SAME_VALUE OF JACK-OPINIONS.
Where the question of the value of a particular jack is in issue, a witness may be allowed in some cases to testify with regard to the value of jacks, in general, of the description, kind, and age of the jack in question, although he has never seen the particular jack in question and has no personal knowledge
thereof. 3. TRIAL-OBJECTION TO EVIDENCE-PETITION-ANSWER.
Where a petition inferentially states a fact, and the answer admits the fact and the defendant objects to the introduction of any evidence under the petition because it does not state such fact, and the court overrules the objection,
held, not error. 4. RAILROAD COMPANIES-INJURY TO ANIMAL-AMOUNT RECOVERABLE.
In an action under the railroad stock law of 1874, for the value of an animal killed by the railroad company in the operation of its railroad, held, that the plaintiff can recover only what the statute permits him to recover, and cannot recover interest on the value of the animal killed prior to the day of trial. Error from Rice county. A. A. Hurd, John Peid, and Robert Dunlap, for plaintiff in error. Wm. J. Fuller and A. M. Lasley, for defendant in error.
VALENTINE, J. This was an action brought by Cal. R. Gabbert in the district court of Rice county against the Atchison, Topeka & Santa Fe Railroad Company, to recover the sum of $500 and an attorney's fee, for the killing of a one-year-old jackass belonging to the plaintiff. The plaintiff alleged, among other things, the failure on the part of the defendant to fence its railroad, the straying of the animal from the plaintiff's premises upon the railroad track without any fault on the part of the plaintiff, and the killing of the animal by the railroad company in the operation of its railroad. All proper allegations were
1 See note at end of case.
set forth in the plaintiff's petition necessary to enable him to recover under the railroad stock law of 1874. The defendant, in its answer, denied generally the allegations of the plaintiff's petition, and also alleged that in Rice county, where the animal was killed, the herd law of 1872 was in force, and that the animal was running at large, in violation of said herd law, when it was killed. To this answer the plaintiff replied by filing a general denial. The case was tried before the court and a jury. Upon the trial it appeared that the railroad was constructed through the plaintiff's land; that the plaintiff's land was inclosed with a fence, but that there was no fence separating the defendant's right of way from the plaintiff's land occupied by the plaintiff.
Whether the herd law of 1872 was in force or not in Rice county, where the animal was killed, and at the time of the killing, is a disputed question of fact. The defendant claims that it was, but the plaintiff claims that it was not. For the purposes of this case, however, it is immaterial whether such' herd law was in force or not in that county; for the plaintiff's jack was pasturing upon his own premises, which were inclosed by a fence, and such jack was not in any sense running at large in violation of any law. Atchison, T. & S. F. R.
, & Co. v. Riggs, 31 Kan. 622; S. C. 3 Pac. Rep. 306. But still the defendant below (plaintiff in error) claims that the plaintiff cannot recover, upon the ground that the plaintiff was guilty of contributory negligence in permitting his jack to run upon his own premises unattended by any one, and without having a fence ordinarily sufficient to prevent such jack from passing onto the defendant's railroad track. This question the defendant below raised by offering to introduce certain evidence, which the court refused, and also by asking the court to give certain instructions to the jury, which the court also refused.
Now, while we think that the owner of stock may in some cases be so guilty of contributory negligence that he cannot recover, under the stock law of 1874, for animals killed or injured by a railroad company in operating its unfenced railroad, yet we do not think that the evidence offered in the present case tended to show that the plaintiff was guilty of any culpable contributory negligence, or that the instructions asked for by the defendant would have been proper in the case. It is true, as stated in the case of Atchison, T. & S. F. R. Co. v. Riggs, 31 Kan. 631, 632, S. C. 3 Pac. Rep. 312, that “if the owner of an animal should negligently permit the same to enter upon the railroad company's track at or about the time when a train was passing, and the animal should thereby be injured, the owner could not recover. And, although the owner of live-stock may permit the same to pasture on his own land in the vicinity of a railroad track, and although the railroad company may be in fault in not building a fence, yet the owner must use reasonable and ordinary care and diligence for the safety and protection of his stock, or he cannot recover. But that is not this case. In the present case, the defendant in offer
ing to introduce the foregoing evidence, and in asking the foregoing instructions, virtually asked the court to say, as a matter of law, that if the plaintiff permitted his “jack to run upon his farm unattended by any one, or without having a fence ordinarily sufficient to prevent such jack from passing onto the defendant's track,” the plaintiff could not recover. This is not the law. Besides the case already cited, see, also, in this connection, Atchison, T. & S. F. R. Co. v. Shaft, 33 Kan. ; S. C. 6 Pac. Rep. 908; Missouri Pac. Ry. Co. v. Bradshaw, 33 Kan. --; S. C. 6 Pac. Rep. 917; Prickett v. Atchison, T.
. & S. F. R. Co., 33 Kan. -- ; S. C. 7 Pac. Rep. 611,
The plaintiff in error (defendant below) also claims that the court below erred in permitting certain evidence to be introduced tending to show the value in Rice county of jacks in general of the description, kind, and age of the plaintiff's, by a witness who had never seen the plaintiff's jack, and had no personal knowledge thereof. understand it, it is not claimed that the witness was not competent to testify with regard to the value of jacks in general in Rice county; but it is claimed that such evidence is not competent to prove the value of the plaintiff's particular jack. Such evidence may in some
. cases be competent, and in the present case we think it was competent.
It is also claimed that the petition did not state that the animal was killed in Rice county, and therefore that the court below erred in overruling the objection made by the defendant to the introduction of any evidence under the petition because of its supposed insufficiency. The petition, however, did state that the killing was done in Rice county, although it stated it only inferentially and not in express terms.
The petition states that the defendant operated its line of road through Rice county, and that, at a point about four and one-half miles east of Lyons, Kansas, killed the plaintiff's jack “while operating such railway, by said defendant running its engine and cars, that were then and there passing over the line aforesaid, against and over said jack.” The answer also admits that the animal was killed in Rice county, and the animal was in fact killed in Rice county. Besides, this question was raised simply by an objection to the introduction of any evidence under the petition.
The plaintiff in error (defendant below) also claims that the court below erred in giving the following instruction to the jury:
“If you should find from the evidence that plaintiff is entitled to recover, the measure of his damages is the actual market value of the jack killed, with 7 per cent. interest from the date of the demand till the present time; but the entire amount cannot in any event exceed $500."
The portion of this instruction objected to is that portion which instructs the jury to give to the plaintiff 7 per cent. interest on the value of the jack killed. We think the instruction to this extent is erroneous. It must be remembered that this is a special statutory action under the railroad stock law of 1874. Laws 1874, c. 94; Comp.
Laws 1879, c. 84; Pars. 4915–4919. Under said railroad stock law, a railroad company whose road is not inclosed with a good and lawful fence to prevent animals from being on such road is "liable to pay the owner the full value of each and every animal killed, and all damages to each and every animal wounded” in the operation of its railroad, irrespective of negligence on the part of the railroad company; and the owner of the animal killed or wounded “may sue and recover from such railway company or corporation or the assignee or lessee thereof, the full value of such animal or damages thereto, together with a reasonable attorney's fee for the prosecution of the suit, and all costs, in any court of competent jurisdiction in the county in which such animal was killed or wounded;” and no statute pro vides for giving interest on the value of the animal killed or wounded; and therefore we think that interest cannot be recovered in actions under the railroad stock law where the animal is killed as in the present case. Toledo, P. & IV. Ry. Co. v. Johnston, 74 Ill. 83; Houston & T. C. R. Co. v. Muldrow, 54 Tex. 233; Meyer v. Atlantic & P. R. Co., 64 Mo. 542; De Steiger v. Hannibal & St. J. R. Co., 73 Mo. 33; S. C. 7 Amer. & Eng. R. Cas. 492; 2 Sedg. Dam. side
There are cases of tort at common law in which interest, or, perhaps more properly speaking, damages in the nature of interest, may be allowed. Mote v. Chicago & N. W.R. Co., 27 Iowa, 22; Dean v. Chicugo & N. W.R. Co., 43 Wis. 305; 3 Pars. Cont. side pige, 105. But this is not one of such cases. This is not an action at common law, but, as before stated, is purely an action under the statute; the railroad stock law of 1874, which is a stringent law, giving to parties an action where none existed before, giving damages where none could have been recovered before, and giving an attorney's fee in the same action,-a thing unknown to the common law,—and therefore, where parties choose to sue under such statute, they must be satisfied with just what the statute itself gives them.
The judgment in this case, with the consent of the plaintiff below, (defendant in error,) will be modified by deducting interest from the amount recovered at the rate of 7 per cent. from the date of the demand, to-wit, July 25, 1882, to the date of the verdict, to-wit, March 24, 1884; but if such consent is not given, the judgment of the court below will be reversed and cause remanded for a new trial. Judgment modified.
(All the justices concurring.)
Railroads-Fences-Injury to Animals. 1. Duty to FENCE. A railroad company is under no common-law obligation to fence its tracks at the peril of responding in damages for injuries arising from its neglect to do so. Continental Imp. Co. v. Phelps, 11 N. W. Rep. 167; Ward v. Paducah & M. R. Co., 4 Fed. Rep. 862. Gen. St. Minn. 1878, c. 31, § 54, requiring railroad com: panies to fence their roads, and to build cattle-guards at wagon crossings, applies as well to the limits of incorporated cities and villages as to the country. Greely v. St. Paul, M. & M. Ry. Co., 22 N. W. Rep. 179. The statute is to be construed as allowing