Plummer v. Atchison, Topeka & Santa Fe Railway Co.

The opinion of the court was delivered by

Burch, J.:

The plaintiff sued for the value of two colts killed by one of the defendant’s trains. He recovered and the defendant appeals.

The evidence was.that the colts went upon the defendant’s right of way through an open gate at a private farm crossing on land not owned or occupied by the plaintiff. The gate and fence were not in perfect condition. Several persons were in the habit of using the crossing, and the gate was usually left open. In July, 1907, the defendant’s section foreman shut the gate a number of times, sometimes as often as twice a…