Opinion by
G-iieen, C.:W. J. Shelley sued the Union Pacific Eailway Company to recover as damages the value of two horses alleged to have been killed by the negligence of the railway company in the operation of its road, and in not exercising due care and diligence in keeping the fence which inclosed its right-of-way in repair at the place where the animals strayed upon the track and were killed. The jury returned a verdict of $250 damages and $50 attorneys’ fees, and judgment was rendered thereon. The railway brings the case here upon several assignments of error.
It is first claimed that there was no demand made for payment of the loss 30 days before suit was brought, in accordance with the provisions of the státute. The plaintiff testified that he demanded pay for the horses of the station agent of the railway company, at Wamego. The language used was: “ I went to Mr. Haacke and told him that I wanted to make a demand for the horses that were killed, that they would weigh about 1,100 and 1,200, and that they were worth $300.” He further testified, that the agent took it down, and then walked off and said, “All right.” It is contended that this language did not amount to a demand, and that the agent of the railway company did not so regard it; that when the plaintiff told, the agent he wanted to make a demand, and the latter said “All right,” he meant, “You can make your demand;” but that it was not the understanding of the agent that a demand was in fact made. We think the language of the plaintiff was sufficient to apprise the agent of the nature of his claim for damages for the stock killed. The agent must have so understood it, because he took it down. If the plaintiff was only expressing a desire to make a demand, the agent was under no necessity of noting it. The object of the law is to apprise the company of the claim the party makes for damages, and thus give an opportunity to settle it. This, it seems, was done, because it ap*672pears from the evidence of the claim agent, who testified in the case, that the claim of the plaintiff for damages came into his hands for the loss of the two horses killed on the 7th day of May, 1889. This corresponds with the allegations in the plaintiff’s bill of particulars; and the railroad company must have considered what the plaintiff said to the agent a demand.
The second assignment of error is in the court’s giving the following instruction:
“The special findings of fact submitted to you, you will answer truthfully, according to the evidence, and if there is any of these questions of fact that you are unable to answer solely because there was no evidence submitted to you, and by which you may be directed, you may answer the same, that you do not know.”
The jury had nine special questions submitted to them. Three of the questions and answers returned were as follows:
“Ques. 4. V/as the brace knocked out of its position in the fence just east of the gate by the horse getting over the fence at that point? Ans. Do not know.”
“Q. 6. Has there been any work of any kind done on the panel just east of the gate, since the date of the accident, except to replace the brace? A. Do not know.”
“Q. 8. Did the ground on'either side of the fence, at the point eight rods east of the gate, have the appearance of a horse with shoes on having jumped over the fence at that point?. A. Do not know.”
It is urged by the counsel for the railroad company that the jury was wrongfully, influenced by this instruction, and, by reason of this instruction, the jury only answered six out of the nine questions submitted to them. We are inclined to the opinion that the instruction should not have been given. While the language is guarded, and the jury are told that if they are unable to answer any of the questions solely because there was no evidence submitted to guide them, they were at liberty to say they did not know, still it may have encouraged the jury to return negative answers. If there is no evidence concerning special questions, courts should not submit *673them to juries. In this case, however, we do not think the instruction and the- failure to properly answer the special questions prejudiced any of the rights of the railway company. The question of when the brace just east of the gate was knocked out of position was not very material. There was evidence that the fence was in a bad condition, and had been for some weeks before the accident. The sixth question was immaterial. The real question was the condition of the fence at the time of the accident. The repairs made afterward would throw but little light upon the real issue. The eighth question was of no essential consequence. There was no evidence that the horses killed had shoes on.
The third assignment of error upon which a reversal is asked is the sixth instruction of the court, which reads:
“If you believe from the evidence that before the commencement of the action the plaintiff was the owner of the animals mentioned in his bill of particnlars; that said animals were tied in a stable near the railroad track; that said animals broke their fastenings and jumped over the fence of the defendant inclosing the railroad right-of-way, at places where the top wire of the fence was slack or broken, or the fence was otherwise out of repair; that such wire had been slack or broken or the fence out of repairs long enough before, so that the defendant, in the exercise of ordinary care, might have known the condition of the fence and repaired the same ; that the animals thereupon got upon the track of the defendant, and were then killed by the cars or engines of defendant in the operation of its road; that the said injury occurred in Pottawatomie county, in the state of Kansas; that the plaintiff demanded payment of a ticket or station agent of the defendant for the value of the animals killed, at least 30 days before the commencement of this action, and that the defendant has not paid for the same, then you will find for the plaintiff for the injury to both animals; otherwise you will find for the defendant.”
The portion of the instruction of which compláint is made is in regard to the condition of the fence at the time and place where the horses crossed onto the right-of-way. The court might have told the jury what constituted a legal fence, but *674we do not think the jury was misled. It was conceded by the plaintiff that at one time the railway company had inclosed its right-of-way with a legal fence; but it was claimed that the fence was out of repair and had been in such a condition for such a length of time that the company ought to have known "that it was in no condition to turn stock from its right-of-way. There was evidence that the top wire was slack; at one point not over 28 inches from the ground; at another place not to exceed three feet; and horses could step over it without much effort. In view of this evidence, we do not think there was any error in the court’s giving the sixth instruction.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.