Atchison

• Decision Date: 10 April 1885
• Citation: 6 P. 587,33 Kan. 366
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. R. R. MCCANDLISS, as Administrator of the Estate of James St. Clair Allen, deceased

6 P. 587

33 Kan. 366

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. R. R. MCCANDLISS, as Administrator of the Estate of James St. Clair Allen, deceased

Supreme Court of Kansas

April 10, 1885

Error from Lyon District Court.

THE opinion states the nature of the action, and the facts. Trial at the September Term, 1883, and judgment for plaintiff for $ 2,000 damages. The Railroad Company brings the case to this court.

Judgment affirmed.

A. A Hurd, C. N. Sterry, and Robert Dunlap, for plaintiff in error; Geo. W. McCrary, general counsel.

Buck & Feighan, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Lyon county by R. R. McCandliss, as administrator of the estate of James St. Clair Allen, deceased, against the Atchison, Topeka & Santa Fe Railroad Company, to recover for the benefit of the next of kin of the deceased, damages for injuries alleged to have been caused by the wrongful act of the defendant. The petition alleges in substance, that on April 24, 1882, plaintiff's intestate was in the employment of the defendant as a common laborer, engaged in repairing the track of what is known as the "McPherson Branch." And while in such employment and in the line of his duties, and while being transported upon a flat car of a construction train to the place of his work, and upon arriving near that place, the train stopped, and the foreman of the work ordered the employes to get off the train to resume their labors; that the car upon which the deceased was situated was then standing upon a bridge, and he was obliged to walk a long distance over the flat cars so as to get to a place where he could get off the train in safety; "and while so getting off, and while he was in the line and faithful discharge of his duty as such laborer, and without any fault on his part, the said train of cars, without any warning given, was, through the gross negligence, carelessness, wrongful act and omission of the said defendant and its servants and agents, suddenly, violently and rapidly started, propelled and jerked forward, throwing plaintiff's intestate down between two cars, and drawing one car over him, crushing one of his legs and otherwise injuring him," thereby causing his death. The defendant's answer was a general denial, and a statement that the injuries to the plaintiff's intestate were caused by his own negligence. The case was tried before the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant, and assessed the damages at $ 2,000; and the jury also made the following special findings, in answer to the following special questions, presented to them by the court at the request of the defendant, to wit:

"1. What was the age of Allen at the time he was killed! A. Forty-two years.

"2. How much a month was Allen earning at the time of his death? A. $ 36.40.

"3. How much a month was Allen at the time of his death and prior thereto contributing to the support of his family? A. Don't know.

"4. At the time of Allen's death and prior thereto, how much a month was he contributing to the support of the other members of his family outside of himself? A. Don't know.

"5. Deducting that portion of Allen's wages at the time of his death and prior thereto, which went to the use of himself, or for his personal benefit, how much of said wages went to the support of his wife and children? A. Don't know.

"6. Did not Allen meet his death by falling between the ends of two flat cars which were coupled together? A. Yes.

"7. If the jury answer the last question in the affirmative, they way state what part of Allen's body or person the car wheels ran over. A. Right leg.

"8. How many car wheels passed over Allen's person, or any part of him? A. One.

"9. What car wheels passed over any portion of Allen's person? A. Front wheel of front truck.

"10. Did both of the wheels on the south side of the front truck of the car from which Allen fell pass over his person or any part of him? A. No.

"11. If the jury answer the last question in the negative, they may state which of the two wheels on the south side of the front truck passed over any portion of Allen's person. A. Front wheel.

"12. What was the distance from the west side of the west or front wheel on the front truck of the car Allen fell from, which was on the south side, to the east side of the rear wheel of such front truck? A. Seven feet one inch.

"13. What was the distance between the end of the flat car from which Allen attempted to step, at the time of his death, to the end of the other car upon which he was attempting to step, with the slack taken out between the two cars, and what was the distance between the two cars without the slack being taken out? A. Two feet one inch, and two feet ten inches.

"14. What was the width of the flat car upon which Allen was standing at the time he met his death? A. Nine feet.

"15. How near the center, in reference to its breadth, was Allen, on the car on which he was standing at the time he attempted to make the step which resulted in his falling? A. Midway between brake staff and south side of car.

"16. How far apart were the rails of the track where Allen was killed? A. Four feet eight and one-half inches.

"17. Did not Allen, at the time of his death, fall between the ends of two flat cars? A. Yes.

"18. Had not the train upon which Allen was at the time of his death, started to move prior to the time Allen attempted to make the step, in the attempt to make which he fell? A. Evidence conflicts, and we cannot answer.

"19. Was not the train moving upon which Allen was at the very time when he attempted to make the step, in the attempt to make which he fell between the cars? A. Yes.

"20. Is it not a fact that before Allen reached the car off from which he fell, that that car and the balance of the train was moving in the direction in which Allen was walking? A. Evidence conflicts, and we cannot answer."

The defendant thereupon moved the court to render judgment in its favor and against the plaintiff upon the special findings of the jury, which motion the court overruled, and then rendered judgment in favor of the plaintiff and against the defendant for the amount of the damages assessed by the jury, and for costs. The defendant then brought the case to this court, and by its petition in error asks that this court shall order that judgment be rendered upon the special findings of the jury in its favor; and whether this court shall so order, or not, is the only question presented to this court.

The ground upon which it is claimed that judgment should be rendered in favor of the plaintiff in error, defendant below and against the defendant in error, plaintiff below, is the fact that the jury did not answer the 18th and 20th special questions presented to them for their consideration. No objection was made at the time to this failure on the part of the jury to answer these two questions. The plaintiff in error, however, now claims that the jury, by failing to answer these two questions, in effect found against the plaintiff below; found that the train had already started, and was in motion before the plaintiff's intestate attempted to make the last and final step which resulted in his death; and that he had ample notice from the movement of such train of the dangerous character of the attempt to make such step. It seems to us, however, that the logic from the jury's failure to answer these questions is against the plaintiff in error, and not in its favor. Upon the authority of the case of Morrow v. Comm'rs of Saline Co., 21 Kan. 484, 504, it would seem to follow that the failure of the jury to answer these questions, would in effect be a finding that the facts concerning which they were asked to find did not exist, or were not proved. In other words, it would seem to follow that it was not proved that the train had been put in motion or was moving prior to the time when the plaintiff's intestate attempted to step from the car on which he was walking to the car in front of it; and by...