*12The opinion of the court was delivered by
Brewer, J.:This was an action to recover damages for stock killed. Judgment was rendered by the justice of the peace in favor of the plaintiff. This judgment was, as to all matters now in controversy, affirmed by the district court, upon proceedings in error. And to reverse this judgment of affirmance, this petition in error has been filed in this court.
No question under the stock-killing law of 1874 arises in this case, as the cattle were killed at a public crossing. The bill of particulars alleged that they were killed through the negligence of the defendant. And now it is objected that it did not allege that the negligence of the company was “ gross.” Clearly such allegation was unnecessary. Ordinary negligence rendered the company liable, and an allegation of gross negligence would be superfluous.
Again, it is objected that the testimony was insufficient to sustain the finding and judgment. Waiving all objection as to the lack of a motion for a new trial, it seems to us that if every step had been taken to have this question properly presented the judgment must be sustained. There was testimony showing that no whistle was sounded, or other alarm given, until the train was within twenty rods of the crossing. This was negligence. (Gen. Stat., p. 206, § 60; L. L. & G. Rld. Co. v. Rice, 10 Kas. 426.) It is doubtful whether any negligence could be imputed to the plaintiff — whether he did not use all the care chargeable upon one driving cattle along a public road. But whether he was guilty of any negligence or not, was, under the circumstances of this case, principally a question of fact, and the finding of the justice, like the verdict of a jury, settles such questions.
We see nothing in the record which would authorize us to disturb the judgment, and it will be affirmed.
Vaeentine, J., concurring.