question was not then discussed or specially considered, so that the case is not a direct authority. See, also, Railroad Co. v. Wilson, 28 Kan. 637; Railroad Co. v. Riggs, post, 305. It is true that authorities in other states are conflicting on this question. See the various authorities cited in briefs of opposing counsel. We think in principle, however, it is more just and fair that where the owner of stock is without fault, and has taken every reasonable precaution to keep his animals confined, and through some unexpected casualty, or misconduct or negligence of a third party, the animals escape from such confinement onto the grounds of another, the latter should use ordinary care to prevent their being injured. See, in support of these views, the following authorities from other states: Pearson v. Milwaukee, etc., Ry. Co. 45 Iowa, 497; Rockford, etc., R. Co. v. Rafferty, 73 Ill. 58; Baltimore, etc., R. Co. v. Mulligan, 45 Mo. 486; Bemis v. Conn., etc., R. Co. 42 Vt. 375; Cin. & Z. R. Co. v. Smith, 22 Ohio St. 244; Ill. Cent. R. Co. v. Baker, 47 Ill. 295; Little Rock & F. S. Ry. Co. v. Finley, 37 Ark. 562; Richmond v. Sacramento, etc., R. Co. 18 Cal. 351.

Again, it is insisted that plaintiff's bill of particulars charged the defendant with liability on account of the lack of a fence; and that, therefore, evidence of negligence was improperly overruled. It is true, the bill of particulars alleged the lack of a fence, but it also counted on the negligence of defendant; and while plaintiff failed to prove the former, he did the latter. This he might do. Stewart v. Railroad Co. 27 Kan. 631. If there was any lack of definiteness in the allegation of negligence, it should have been corrected by motion. We see nothing else requiring notice, and the judgment will be affirmed.

(All the justices concurring.)

(31 Kan. 636)

HEGWER V. KIFF and others.

Filed March 6, 1884.

The regular judge of the district court having been of counsel in several cases, and therefore disqualified to sit in the trial thereof, on motion of a member of the bar a pro tem. judge was elected. Neither counsel nor client in this case appear by the record to have participated in such election, or to have been present or consented thereto. Held, that an application for a change of the place of trial to another district was not too late when made at the time the case was called for trial by the pro tem. judge.

Error from Reno county.

Zimmerman & Taylor and F. E. Gillett, for plaintiff in error.

James McKinstry, H. Whiteside, and R. A. Campbell, for defendant in error.

BREWER, J. But a single question requires notice. Judge HoUCK, the regular judge of the district court, had been of counsel in many cases standing for trial at the July term, in consequence whereof, on motion of a member of the bar, an election was held for the purpose of electing a judge pro tem. to try any and all cases in which Judge HOUCK might be interested, and at such election Hon. A. L. Green was elected pro tem. judge. Thereafter, when this case was called for trial, counsel moved to have the place of trial changed to some other district, on the ground that Judge Houck had been of counsel, and was therefore disqualified to sit. This motion was overruled, and this is the error complained of. That, when the district judge is disqualified to sit in the trial of any case, it is his duty, upon the application of either party, to change the place of trial to some other district, has been settled, and is not questioned. Railroad Co. v. Reynolds, 8 Kan. 623. But the contention is that the plaintiff in error was too late in his application; that it should have been made at or before the election of the pro tem. judge. We think this is a mistake. It does not appear from the record that either counsel or client in this case participated in such election, or were present or assented thereto.

Now the right of a party to a change of the place of trial cannot be taken away by the action of others. It is a personal right of which he can be deprived only by his own action. Unless he personally or by his counsel participates in the election of the pro tem. judge, he has done nothing to waive his right. And even if his counsel were present and participated, it would be doubtful whether such participation was a waiver of the right unless this case was expressly named. The action of counsel might well be considered as an exercise of his privilege as a member of the bar, and not as the waiver of any rights of clients for whom he might appear in any particular case. It is, however, unnecessary to determine that question; for, as the record stands, there is nothing to show that they were either present or participated in the election. There is nothing in the cases of Davis v. Wilson, 11 Kan. 80, or Higby v. Ayres, 14 Kan. 338, opposed to these views; for in neither of them was presented any application for a change of venue.

The judgment of the district court will be reversed, and the case remanded for a new trial.

(All the justices concurring.)

SUPREME COURT OF KANSAS.

31 Kan. (35)

STATE v. FORNEY.

Filed March 6, 1884.

Appeal from Chase county.

Sanders & Smith and T. S. Jones, for appellant.

W. A. Johnston, Atty. Gen., and S. P. Young, for the State.

PER CURIAM. William Forney, city marshal of Cottonwood Falls, in Chase county, was charged with unlawfully and feloniously taking, stealing, and carrying away in the night-time, out of and from a drawer in a writing-desk in the office of J. A Smith, one Smith & Wesson revolving pistol, of the value of $15. The jury returned a verdict of not guilty as to Forney, and further found that J. A. Smith was the prosecuting witness, and that the prosecution had been instituted without probable cause and from malicious motives. Judgment was rendered in accordance with this verdict. J. A. Smith appeals to this court. Within the authority of State v. Zimmerman, 1 Pac. REP. 257, the judgment of the district court must be affirmed. See, also, State v. Spencer, 81 N. C. 519; State v. Adams, 85 N. C. 560.

(31 Kan. 622)

ATCHISON, T. & S. F. R. Co. v. RIGGS.

Filed March 6, 1884.

1. In Kansas, under the railroad stock law of 1874, (Laws 1874, c. 94,) railroad companies are required to inclose their roads with a good and lawful fence, to prevent animals from going upon their roads; and in counties where the "herd law" of 1872 is in force, (Laws 1872, c. 193,) cattle are not allowed to run at large. In a county where both of these laws are in force, an owner of cattle kept and pastured them on his own land, through which a railroad was constructed and operated, which railroad was not inclosed by any fence, separating it from the owner's land; and the cattle strayed upon the railroad, where one of them was killed by the railroad company in the operation of its road. Held, that the owner of the cattle may recover from the railroad company for such injury.

2. Where the plaintiff sues a railroad company for negligently permitting fire to escape from one of its engines, whereby 40 tons of hay belonging to the plaintiff were destroyed; and the jury find a general verdict in favor of the plaintiff and against the railroad company, but also find that the engine from which the fire escape i was "of the most approved invention and construction, so far as the appliances for preventing the escape of fire were concerned;" and also find that the engine was "in good condition, so far as all the appliances for preventing v.3,no.4-20

the escape of fire were concerned; and also find that the engineer who managed the engine from which the fire escaped was "a competent, skillful, and careful engineer;" and there was no evidence introduced tending to show that the engineer mismanaged the engine, or that he was negligent in any respect with regard to its management; and the jury do not find that there was any mismanagement or negligence on the part of the engineer, but, in answer to the following question put to the jury, to-wit, "How did he so mismanage his engine as to set out the fire?" the jury answer, "We cannot tell;" and in answer to the further question put to the jury, to-wit, "In what does the negligence of the railroad company in permitting the fire to escape from its engine or train consist?" the jury answer, We cannot tell;" and the court renders judgment upon these special findings in favor of the defendant and against the plaintiff: held, that the judgment will not be reversed by the supreme court. A railroad company is not liable for purely accidental fires caused by its engines.

Error from Marion county.

66

Geo. R. Peck, A. A. Hurd, and W. C. Campbell, for plaintiff in error.

L. F. Keller, for defendant in error.

VALENTINE, J. The Atchison, Topeka & Santa Fe Railroad Company has filed a petition in error in this court to reverse a judgment of the district court of Marion county, rendered against the railroad company and in favor of James D. Riggs, and Riggs has filed a crosspetition in error to reverse a judgment rendered by the same court in the same case in favor of the railroad company and against Riggs. Riggs was the plaintiff in the court below, and in his petition below set forth two causes of action: First, a cause of action for causing the death of his cow by the railroad company's failing to fence its road, as required by chapter 94 of the Laws of 1874, whereby the cow strayed upon the railroad track, where she was killed through the negligence of the railroad company in operating its road; and, second, a cause of action for negligently permitting fire to escape from one of the company's engines, whereby 40 tons of hay belonging to the plaintiff were destroyed. The defense was-First, a general denial; second, that the cow was killed at a time when she was running at large, in violation of the county "herd law" of 1872, which was then in force in Marion county, where the cow was killed; and, third, that the cow was killed on the railroad track where it crosses a public highway. A trial was had before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant on both causes of action, and also made certain special findings of fact; and upon this verdict and these special findings of fact the court below rendered judgment in favor of the plaintiff on the first cause of action, and in favor of the defendant on the second cause of action; and the defendant (as plaintiff in error) now complains of the judgment rendered on the first cause of action, and the plaintiff below (defendant in error) complains of the judgment rendered on the second cause of action.

As to the first cause of action, it appears from the evidence that during all the time while the various transactions were occurring out. of which the plaintiff's cause of action is supposed to have arisen, the defendant's railroad was located upon and passed through the plaintiff's land, a portion of which road was fenced and a portion was not fenced, though all of it could have been fenced; the plaintiff's cattle were kept and pastured on his own land, from which they strayed, through a place where the railroad was not fenced, onto the company's premises, where, immediately afterwards, the plaintiff's cow was killed by a passing train. It was also admitted that the county "herd law" of 1872, (Laws 1872, c. 193,) as well as the railroad stock law of 1874, (Laws 1874, c. 94,) was in force in Marion county, Kansas, where the cow was killed. These are not all the facts of the case, but these, we think, are all that are necessary to be stated for the purposes of the question which we now propose to discuss. Under these facts, is the railroad company liable? That the railroad company was bound to fence its road, and for its failure to do so is liable for the killing of the plaintiff's cow, there can certainly be no doubt, unless the plaintiff, by his own wrong or negligence, contributed to the injury. See "railroad stock law" of 1874, and the numerous decisions of this court made under such stock law. But the railroad company claims that the plaintiff did commit wrong and was guilty of negligence in permitting his cattle to "run at large" in his own field adjoining the railroad track in violation of the "herd law" of 1872, as the company claims, which precludes, as the company claims, all right on the part of the plaintiff to recover from the railroad company for the killing of his cow.

Now, it is not claimed that the plaintiff is precluded from his right to recover merely because his cattle were technically trespassing upon the company's premises, or upon the land from which they strayed when they entered upon the company's premises; for this court has repeatedly decided that the owner of cattle, not running at large in violation of some positive statute, but rightfully running at large under the statutes, and merely straying from land in which the owner of the cattle had no interest, and upon which the cattle were technically trespassers, to and upon the unfenced premises of a railroad. company, in which the owner of the cattle had no interest, and upon which the cattle were technically trespassers, might recover from the railroad company for any injuries done by the company to the plaintiff's cattle in the operation of its road. See the numerous decisions made by this court upon this subject. There are also decisions of other courts, going even beyond this: Ry. Co. v. Howard, decided by the supreme court of Ohio, April 24, 1883, 11 Amer. & Eng. Ry. Cas. 488; Toledo, etc. Ry. Co. v. Cary, 37 Ind. 172; Keliher v. Conn. R. R. Co. 107 Mass. 411; McCall v. Chamberlain, 13 Wis. 637; Dunkirk, etc., R. Co. v. Mead, 90 Pa. St. 454; S. C. 1 Amer. & Eng. Ry.