Atchison

• Decision Date: 08 July 1892
• Citation: 30 P. 470,49 Kan. 367
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. R. F. O'NEILL

30 P. 470

49 Kan. 367

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. R. F. O'NEILL

Supreme Court of Kansas

July 8, 1892

Error from Lyon District Court.

ACTION by O'Neill against the Railroad Company, to recover for personal injuries. Verdict and judgment for plaintiff, at the December term, 1889. New trial denied. Defendant brings error.

Judgment reversed.

Geo. R Peck, A. A. Hurd, and C. N. Sterry, for plaintiff in error:

1. The plaintiff in error was and is entitled to a judgment in its behalf against the defendant in error, and for costs of the case, notwithstanding the general verdict, upon the special findings of fact returned by the jury in this case. To fully understand the proposition here made, it will be necessary to give a specific statement of the facts in the case concerning which there is either no dispute, or, if disputed are found by the jury as herein stated.

After stating the facts, counsel further say: The case in the court below was tried entirely upon the theory that the head brakeman gave a signal or order to the engineer to move the train at the time it moved, and caused the injury, carelessly and negligently, and without any authority whatever. There was and is no evidence whatever in the record of any negligence which resulted in this injury, unless it was negligence, under the circumstances, for the head brakeman to instruct the engineer to move ahead at the time of defendant in error's injury, and this we shall assume will be conceded by the other side. It seems hardly possible that under the circumstances shown by the evidence, and the findings of fact above quoted, but that the plaintiff below not only failed to establish any negligence, but that, on the contrary, the head brakeman (the only one charged with negligence) acted with great care and caution, and that the injury was the result of one of those unavoidable accidents which every man employed as plaintiff was employed assumes as one of the risks of his employment.

2. The district court erred in overruling the motion for a new trial.

(a) The only charge of negligence contained in the petition filed by plaintiff below reads as follows:

"And this plaintiff avers that said injury occurred wholly without any fault or negligence on his part, and wholly because of the gross carelessness and negligence of said defendant, its agents, and servants, and in violation of all proper rules and regulations for the management and handling of cars under such circumstances."

To this petition defendant filed a motion to make it more definite and certain in certain particulars set forth therein, which motion the court overruled, as also a general demurrer to the petition.

There can hardly be any question but that the motion to make this petition more definite and certain, in reference to the negligence sought to be charged, should have been sustained. Young v. Lynch, 66 Wis. 514; Waldheim v. Railroad Co., 71 Mo. 514; Edens v. Railroad Co., 72 id. 212.

The general allegation as to these matters might have been reached by a motion to have the complaint made more specific; but the complaint is not necessarily bad as against a demurrer, because the allegations are thus general. C. H. & D. Rld. Co. v. Chester, 57 Ind. 297; Jones v. White, 90 id. 255; C. C. C. & 1. Rly. Co. v. Wynant, 100 id. 160; L. N. A. & C. Rly. Co. v. Krimming, 87 id. 351, 352; Boyce v. Fitzpatrick, 80 id. 526; L. N. A. & C. Rly. Co. v. Jones, 9 N.E. 479. After the filing and overruling of the motion, the petition should have been held bad upon the demurrer, under the decision of this court in Stewart v. Balderston, 10 Kan. 106.

(b) The court committed numerous errors on the trial of the case below in permitting evidence to be introduced which was clearly irrelevant, incompetent, and immaterial.

Again, the plaintiff placed Mr. Boltz upon the stand, and after showing by him the different movements of the engine upon the signals given by him to the engineer, and received, as he believed, from the conductor, disclosed that Conductor

Ingalls came running back after the last movement of the train (being the movement which injured plaintiff below) to the place where the brakeman was standing; and then the witness was asked what Ingalls said to him (the witness). This question was properly objected to, and the objection overruled, and the witness was permitted to answer, as follows:

"A. Why, when he came up to me he asked me what caused me to start the engine; he asked me who gave me the signal to pull ahead; I told him he did; he said he didn't; I told him some person did; he said no person didn't around there; I told him some person around there gave the signal to pull ahead."

The defendant moved to have the answer withdrawn, which motion was overruled and excepted to. This conversation between the conductor and the brakeman was had after the injury, and after the conductor had had to travel 450 to 500 feet from where he was standing at the time of the injury to the point where witness was; and therefore it was clearly hearsay, and no part of the res gestae, under the many decisions of this court. Tennis v. Rapid Transit Rly. Co., 45 Kan. 509.

(c) The court erred in refusing to give instructions requested by plaintiff in error.

In view of the examination made by the plaintiff below of his own witness, it seems to us that the court should have given either the third or fourth special instruction requested by the plaintiff in error. 1 Greenl. Ev., § 442. Under the peculiar circumstances of this case, the court should have given the ninth instruction requested. There is no question but that it is a correct statement of the law, and that it was and is applicable to the facts in this case. There was and is no instruction given by the court which covered the same proposition.

(d) The court erred in its instructions to the jury.

(e) The jury found many material findings of fact absolutely contrary to all evidence in the case, and made material findings of fact so inconsistent with each other and with the evidence as to require a reversal of this case, under the familiar rules established by this court in reference to such matters.

(f) The jury disclosed by their verdict and by their answers to the special findings of fact that they were influenced by passion and prejudice, and not influenced by any desire to do right, in returning their verdict. The amount of damages for the actual loss was excessive, and was clearly given under the influence of passion and prejudice. It fully appears from the evidence of the physicians that an artificial leg could be used by the plaintiff below, so that his injury would not greatly cripple him; and yet the jury gave a sum largely in excess of what should, under any reasonable rules, be given in such a case. K. C. F. S. & G. Rld. Co. v. Kier, 41 Kan. 671.

(g) The findings of fact showing that Boltz believed he saw a signal, at the time he communicated to the engineer an order to move the train forward the last time, are entirely inconsistent with the general verdict and with the other findings of fact; and if such findings do not entitle the plaintiff in error to judgment on the findings in its favor, they certainly should entitle it to a new trial.

J. Jay Buck, and I. E. Lambert, for defendant in error:

1. Counsel for plaintiff in error say in their brief, that "the case in the court below was tried entirely upon the theory that the head brakeman gave a signal or order to the engineer to move the train at the time it moved, and caused the injury," etc. Now, the case below was tried, and is here presented, upon the theory and the fact that the car needed repairing, and that the yardmaster left the matter entirely in the hands of the conductor. The yardmaster stood by and saw them under the train and knew their danger, and did nothing to protect them. The conductor ordered plaintiff out to do this work, and plaintiff relied upon the conductor protecting him, and that it was a part of plaintiff's duty. The yardmaster, conductor and rear brakeman stood with their lanterns on the ground by the side of the car, and they did not move their lanterns, and gave no signals, and all this in view of plaintiff; hence, he had a right to rely upon them and feel safe.

2. The second point made is, that the court below erred in not granting a new trial, for the following reasons:

(a) That the petition is indefinite, and the motion should have been sustained. The petition states, among other things, that the car having become disabled, the conductor ordered plaintiff and his assistant to repair it, and it then and there became necessary, to properly repair said car as ordered, for plaintiff to go under it, and that while plaintiff was under the car, and necessarily there pursuant to the orders he had received, the engine was violently and suddenly started forward, without notice or warning to this plaintiff, and against his positive orders and the orders of the conductor in charge of said train, . . . and the car (under which plaintiff was working) was so forcibly and violently jerked forward as to cause the injury, as specifically explained. Then follows what counsel for plaintiff in error quotes as the only allegation of negligence. We think the petition stated the facts. True, it did not purport to set out all the evidence; did not state how lanterns were swung, if any were swung; nor with which hand the engineer started the engine; or whether he started upon an improper signal; or without signal; nor if he had a signal; nor none should have been given him. The motion desired us to state whether the engine was "started forward through the acts of any of defendant's employes." We trust this court will not assume that when the men in charge...