
    Elias Plummer, Appellant, v. The Atchison, Topeka & Santa Fe Railway Company, Appellee.
    
    No. 16,640.
    Appeal from Butler district court.
    Opinion filed July 9, 1910.
    Reversed.
    
      N. A. Yeager, for the appellant.
    
      William R. Smith, O. J. Wood, and Alfred A. Scott, for the appellee.
   Per Curiam:

A colt got upon the railroad track and was killed. It went upon the right of way through an open gate. The railway company built the fence originally, and placed a gate at this opening. It may be presumed that the fence and gate were sufficient when constructed. It is the duty of the railroad company to build and maintain fences and gates along its right of way, and it is the duty of the farmer for whose use a gate is erected to close it when it is not out of repair. The evidence in this case centered upon whether or not the gate in question was in such condition that it might have been operated as gates usually are, in opening and closing. The evidence was not satisfactory upon this point, and the railroad company demurred to it. The court sustained the demurrer, and the plaintiff appeals.

We think this action of the court was erroneous. There was evidence from which it might have been inferred that the gate had not been provided with either hinges or means of fastening, and that it had been down on the ground for months and longer. If the case had been submitted to a jury upon this testimony, and a verdict in favor of the plaintiff had been returned, it would have been difficult to set it aside. The demurrer should have been overruled.

The judgment is reversed, with directions to grant a new trial.  