The opinion of the court was delivered by
Brewer, J.:This was an action under chap. 94, Laws 1874, to recover of the railroad company the value of a span of horses killed on the track by a passing train. The testimony left a question whether the animals went upon the track by jumping over a sufficient cattle-guard, or entering through a broken and defective panel of fence. The jury found the latter, and we think upon the testimony the finding was correct. No special complaint is made of this finding, but it is insisted that the court erred in its instructions, for two reasons: First, it is claimed that there is conflict between those given at the instance of the plaintiff, and those given at the request of the defendant. We think not. The court in one told the-jury that, if the animals jumped a sufficient eattle-guard and-thus got upon the track, the condition of the fence was immaterial and the company not liable. This was upon the theory advanced by the defendant; and in it is no conflict with an instruction as to what constitutes a sufficient fence,, which was applicable only to the plaintiff’s theory. The other objection is, that the court gave certain abstract propositions of law which misled, or might have misled the jury.. The facts in reference to this are, that the court in its first, and second instructions given at the instance of the plaintiff, quoted literally §§4915 and 4919, Comp. Laws of 1879, the-two sections which prescribe the liability of the railroad company for stock killed in case its track is not fenced; and in its third instruction given at like instance, quoted §§ 2561,. 2562, 2563, sections which define the requisites of legal fences^ *179Now so far as the first two instructions are concerned, they state what of course is the law, and there is nothing in them of any moment which was not applicable to the case at bar. They simply contain the legislative declaration that a railroad company whose track is not fenced with a good and sufficient fence is responsible for cattle killed on its track. So far as the third instruction is concerned, part of the sections quoted refers to fences of a different kind from that disclosed by the testimony. Of course as to such portion of the sections the instruction was inapplicable. But while it is sometimes true that, when instructions correct as abstract propositions, but inapplicable to the case on trial, are given, the verdict cannot be permitted to stand, yet this rule obtains only when there is reason to believe that the jury were misled, or their attention diverted from the real issues by such inapplicable instructions. The mere fact that an instruction is inapplicable does not compel a reversal. If it appears that the matter contained therein is of such a nature that in no manner could it affect the jury prejudicial to the rights of the party complaining, the judgment will not be reversed. (Burton v. Boyd, 7 Kas. 17; Hentig v. Kansas Loan & Trust Co., 28 id. 617; Edwards Bros. v. Porter, 28 id. 700; Tollman v. Jones, 13 id. 438.)
These being the only matters complained of, and in them appearing no error, the judgment will be affirmed.
All the Justices concurring.