Atchison

• Decision Date: 03 July 1884
• Citation: 4 P. 352,32 Kan. 255
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JOHN THUL

4 P. 352

32 Kan. 255

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JOHN THUL

Supreme Court of Kansas

July 3, 1884

Error from Shawnee District Court.

ACTION by Thul against The Railroad Company, to recover damages for personal injuries. Trial at the October Term, 1883, and judgment for plaintiff for $ 2,000 and costs. The defendant brings the case to this court. The opinion states the material facts.

Judgment reversed.

A. A Hurd, Robt. Dunlap, and W. C. Cambell, for plaintiff in error; Geo. W. McCrary, general counsel.

Case & Curtis, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by John Thul against the Atchison Topeka & Santa Fe railroad company, to recover damages for injuries alleged to have been caused through the negligence of the agents and servants of the defendant in operating its railroad. The alleged injuries occurred about December 15, 1881, and were principally to the plaintiff's eyes, and were alleged to have been caused by the defendant's agents and servants throwing hot water or steam into the plaintiff's face and eyes, from an engine belonging to the defendant. The case was tried before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant, assessed the plaintiff's damages at $ 2,000, and also made numerous special findings in the case. The defendant moved for judgment upon the special findings, and also filed a motion to set aside the verdict and findings, and for a new trial; which motions were overruled by the court, and judgment rendered in favor of the plaintiff and against the defendant for $ 2,000 and costs. To reverse this judgment the defendant now prosecutes a petition in error in this court.

The first point made in this case is, that the evidence is not sufficient to sustain any judgment or verdict in favor of the plaintiff and against the defendant, and therefore that the judgment of the court below should be reversed. We think the plaintiff in error, defendant below, is mistaken with regard to this matter; and yet we are inclined to think that there was such error committed in the case as to require a reversal of the judgment of the court below. It appears that prior to and on December 15, 1881, the plaintiff, Thul, was in the employ of the defendant as a section hand. He was then partially blind from disease of the eyes, which he had contracted in the year 1861. On or about December 15, 1881, the plaintiff, with other laborers in the employ of the defendant, about twenty-two or twenty-three in number, started on three hand-cars to go from Topeka to their place of work, a few miles east of Topeka, and after passing over the track about one-quarter of a mile, they met one of the defendant's trains on the same track, coming from the east. This train consisted of an engine, a tender, and a few coal cars. As to which end of the engine was in front, the evidence does not clearly show, but probably the end with the pilot or "cow-catcher" was in front. When the men on the hand-cars saw the train coming they took the hand-cars off the track, placed them on the north side thereof, and they all stood there until the train passed. They were far enough away from the track to avoid all danger of being struck by any portion of the train. There were two or three men in the cab of the engine, one of whom was looking out at the time. Whether the other one or two looked out or not at any time is not clearly shown by any direct evidence. Just as the engine passed these men with the hand-cars, a quantity of water, or steam and water, was thrown from the engine, some of which went into the face and eyes of the plaintiff, Thul. Of course the plaintiff was injured, but whether much, or little, is a very doubtful question--probably not very much; but whatever the injury may have been, we think he is entitled to recover for it, and it constitutes the basis of this action. We think there was ample evidence to sustain a verdict and judgment in favor of the plaintiff and against the defendant for some amount; and hence the court below did not err in overruling the defendant's demurrer to the evidence, and did not err in overruling the defendant's motion for judgment, and would not have erred in overruling the defendant's motion for a new trial, if no other ground had been interposed to support such motion than that no cause of action was proved in favor of the plaintiff.

The principal ground, however, upon which the defendant claims that no verdict or judgment should have been rendered against it, is that there was no sufficient evidence introduced to show that the man who looked out of the cab was the engineer, or to show that the engineer saw any of the men on the side of the track, or that he knew that they were near when the water and steam were permitted to escape from the engine; and it claims that presumptively no one but the engineer had any authority to permit steam or water to escape from the engine, and therefore presumptively that he was the one who did it. The jury, however, found that the engineer did see the men on the side of the track before the water or steam was permitted to escape; and we think the evidence will sustain such a finding. It was undoubtedly the duty of the engineer to look ahead of his engine and on both sides, and to know what was in front and near the engine on both sides, and in all probability he did see these men on the side of the track, and knew that they were there; and there was not a particle of evidence introduced in the case tending to show otherwise. He may have been the very man whom the men on the side of the track saw looking out of the cab when the engine passed.

We think there was ample evidence to show that the plaintiff on his part was free from all fault and negligence, and the jury so found; and we also think that there was ample evidence to show that the defendant on its part and through its employes was guilty of negligence, and this the jury also found; and therefore we think that the evidence showed that the plaintiff was entitled to recover something.

But a still more serious question arises: Was not the jury misled by a certain instruction of the court below? and being so misled, did they not award the plaintiff excessive damages? The instruction reads as follows:

"Ninth. There has been some evidence in the case, known as 'expert testimony.' In respect to such testimony I instruct you that its value depends upon the learning and skill of the expert witness, and on the nature of the subject of investigation. The value of such testimony varies with the circumstances of each case, and of these circumstances the jury must be the judges; and you must determine whether great or little weight is to be accorded to it. But in all cases such testimony should be received and weighed with caution."

The defendant excepted to this instruction, but really complains of only the last sentence thereof, to wit: "But in all cases, such testimony [that of experts] should be received and weighed with caution." Counsel for the defendant ask: "Why should the testimony of experts in all cases be received and weighed with caution? Is there such a probability of mistake in science that opinions based upon facts are to be received with caution?" We think this question is pertinent in the present case, for the reason that the defendant based its whole defense almost entirely upon the testimony of medical experts; and these medical experts were not ignorant men brought in merely by the defendant itself to testify as partisans in its defense or to prove its case, but they were educated physicians and surgeons of long...