
    The Missouri Pacific Railway Company v. David Kocher.
    1. Case, Followed. The case of A. T. & S. F. Bid. Go. v. Griffis, 28 Kas. 539, followed.
    2. Killing Cow — Defense — Highway Grossing. Where an action is brought against a railway company, under chapter 94, Laws of 1874, (¶¶ 1252-1257, Gen. Stat. of 1889,) for damages for stock killed at a place where the road is not inclosed with a good and lawful fence, the company may show as a defense that the stock was killed at a crossing of the road used and traveled by the public as a highway, although not established or regularly laid out by the county authorities.
    
      Error from Chautauqua District Court.
    
    Action to recover damages for killing a cow. Judgment at the June term, 1888, for the plaintiff, Kocher, for $25 damages, and $31.25 attorney’s fee. The defendant Company brings the case to this court.
    
      J. H. Richards, and C. E. Benton, for plaintiff in error.
    
      J. Milton, for defendant in error.
   The opinion of the court was delivered by

Horton, C. J.:

In this case there was some evidence tending to show that the animal was injured at the crossing of a road over the track and right-of-way. The railroad company attempted to show that this crossing was used and traveled by the public as a highway, and, therefore, that the company was not bound to fence or inclose such crossing. The trial court refused to receive most of this evidence, and also refused to submit the question to the jury whether the animal was killed at a crossing used by the public. This was error, and material error. It was decided in A. T. & S. F. Rld. Co. v. Griffis, 28 Kas. 539, that a railroad company is not liable, under chapter 94, Laws of 1874, for stock killed at the crossing of a road used and traveled by the public as a highway, though the crossing and route thus traveled is in fact not a regularly laid out and established highway. (See, also, 13 Am. & Eng. Rld. Cases, 532, 533, and cases there cited.) In a note to the principal case it is stated —

“That the true test whether or not a railroad company is bound to fence at a particular point is, whether there is a practical user of the land at such point as a public place, either as a highway or otherwise. This is irrespective of the questions of dedication, statutory appropriation,” etc.

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

All the Justices concurring.  