Benton v. St. Louis & S. F. Ry. Co.

• Decision Date: 22 March 1887
• Citation: 25 Mo.App. 155
• Parties: MATILDA C. BENTON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 155

MATILDA C. BENTON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

March 22, 1887

APPEAL from the Laclede County Circuit Court, W. J. WALLACE, Judge.

Reversed and remanded.

JOHN O'DAY and E. D. KENNA, for the appellant: A refusal to submit proper issues for special findings is error. Todd v. Fenton, 66 Ind. 28; Harbough v. Cicott, 33 Mich. 241; Lambert v. McFarland, 7 Nev. 159; Knowlton v. Railroad, 59 Wis. 278. " A party has the right in a jury trial, to have answers returned to specific questions, as to material facts, and a denial of this right is error." Wyandotte v. Gibson, 25 Kan. 236; Bent v. Philbrick, 16 Kan. 190; 14 Kan 38. " When a question is submitted as to a particular fact, which is pertinent to the issue the court has no discretion," but must submit the same. Bent v Philbrick, 16 Kan. 190; Railroad v. Rice, 10 Kan. 426.

OPINION

ROMBAUER J.

This suit is one to recover damages for the killing of the plaintiff's cow by the defendant's locomotive, in the village of Phillipsburg, and is a common law action for negligence.

There was uncontroverted evidence showing that the cow was struck and killed by one of the defendant's locomotives attached to a freight train, within the limits of the town of Phillipsburg, and the only controverted fact was, whether or no the accident had been brought about by the negligence of the defendant's employes in charge of its locomotive or train.

One of the plaintiff's witnesses testified, that a train going at the rate of fifteen or twenty miles an hour, could be stopped at that place within one hundred and fifty yards. This was the only testimony offered by the plaintiff on that point, and was opposed by the testimony of the defendant's engineer, who stated that an ordinary freight train, as this was, if going at the rate of between fifteen and twenty miles an hour, could not be stopped at that place in a shorter distance than half a mile, nor in a shorter distance than a quarter of a mile, if going at a rate of twelve miles an hour, as the track is down grade.

On other points the plaintiff adduced the following evidence One of her witnesses stated that the cow was standing twenty or forty feet from the track, before she started towards the track, the train being then two or three hundred feet distant. Another stated that the cow was fifteen or twenty feet from the track when the train first came in sight, and that there was a tree about ten inches through between her and the engine. Another that the cow was thirty or forty yards from the train when she went upon the track; another, that she was one hundred yards from the train when she got on the track. Thus it will be seen, that, both as to the fact within what distance a freight train as this was running, at ordinary speed, could have been stopped before reaching the place of collision, and as to the fact how far the cow was from the train when she first went upon the track, there was considerable conflict of evidence.

The defendant, thereupon, requested the court to submit to the jury the following issues for their special finding:

" (1) Was the plaintiff's cow killed in the town of Phillipsburg?

(2) If you answer in the affirmative, then state if it was struck by an engine of the defendant?

(3) Did the engineer or fireman (if the answer to the above is in the affirmative) see the plaintiff's cow before they struck it?

(4) Was there not a tree between the cow and the approaching train?

(5) Did not the cow start to cross the track when it, the cow, was twenty feet from the track and the train about a quarter of a mile from the place where the animal was struck?

(6) Did not the cow come on the track when the train was within less than fifty yards of the place where the animal was struck?

(7) If you answer the above in the negative, then state what distance from the place of collision the train was when the cow went upon the track?

(8) How far from the place of collision was the train when the cow started toward the track?

(9) Before the animal started toward the track had not the cow been standing in the road or upon the common adjoining the railway?

(10) Within what distance could the train which struck the animal have been stopped with safety to the life and property on it, had it been signaled within the limits of Phillipsburg on the day in question?

(11) Could the train have been stopped in less than one hundred and fifty yards?"

The court refused to give the issues numbered three to eleven inclusive, and to such ruling the defendant at the time excepted.

The jury found a verdict for the plaintiff, and the defendant, appealing, assigns, among other errors, the action of the court in refusing to submit these special issues.

The act of 1885 provides, " The court upon the request of either party, shall direct the jury under proper instructions to find a special verdict, upon all or any of the issues submitted to them, which submissions shall be in writing distinctly specifying each issue on which the jury are to find, and such special finding shall be recorded with the verdict. Whenever the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly. The verdict of the jury, as well as any special finding, shall be reduced to writing, and signed and returned into court by the foreman. While the words used in the begining of the section are " a special verdict," subsequent parts of the section show that special findings are intended, because the jury are at the same time required to bring in " a general verdict."

Similar statutes have been in force in many of the western states for some time. Their object, unquestionably, is to enable the court, and the parties, respectively, to ascertain how the jury has found upon such independent controlling facts as are requisite to justify legally their general finding for one party or another. As the statute contemplates the submission of a number of issues, it clearly does not contemplate that each of the issues or questions, thus submitted, should, in itself, and standing alone, be conclusive of the right of either of the parties. On the other hand, as the statute contemplates that the court may give judgment according to the special findings, regardless of the jury's general verdict, the issues thus submitted as a whole must be such that the court may legally construct a verdict upon the answers of the jury to such questions, for or against one of the parties.

Judge Brewer, in construing the law of Kansas, which is substantially the same as ours, in Wyandotte v. Kansas (13 Kan. 191), says: " It is useless to compel the jury to answer a question, whose answer, whatever it may be, can have no bearing on the general verdict." And the same judge, in Bent v. Philbrick (16 Kan. 192), says with equal emphasis, " that where a question is submitted as to a particular fact, which is pertinent to the issues, and necessarily to be determined by the jury, the court has no discretion to refuse," provided, as was added in Wyandotte v. Gibson (25 Kan. 236), the same issues are not already covered by other questions.

So in Indiana, under a statute similar to ours, it was held, in Todd v. Fenton (66 Ind. 28), that the refusal of submission of proper interrogatories to the jury for a special finding, at the request of either party, was prejudicial error. To the same effect are Knowlton v. Railroad (59 Wis. 278), and Lambert v. McFarland (7 Nev. 159).

In Michigan it has been held in a number of cases that inconclusive questions or issues need not be submitted,...