Atchison

• Citation: 15 P. 499,37 Kan. 567
• Court: United States State Supreme Court of Kansas
• Decision Date: 05 November 1887
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JARED CONE

15 P. 499

37 Kan. 567

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JARED CONE

Supreme Court of Kansas

November 5, 1887

Error from Wyandotte District Court.

ACTION by Jared Cone against The Railroad Company, to recover damages for personal injuries. Trial at the July Term, 1885. The jury found for the plaintiff, and assessed his damages at $ 50,000, the sum which he prayed for. The jury also made 136 special findings of fact, requested by the defendant company. It moved for judgment in its favor upon the findings of fact returned by the jury, notwithstanding the general verdict which motion was overruled. Thereupon the defendant filed its motion for a new trial. Afterward, the court--the plaintiff consenting--ordered a remittitur of one-half of the damages aforesaid; and thereupon the court overruled the motion for a new trial, and adjudged that the plaintiff recover of the defendant $ 25,000 damages, together with the costs. The Company brings the case to this court. The opinion contains a sufficient statement of the material facts.

Judgment reversed and cause remanded for new trial.

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

Thos P. Fenlon, J. S. Ensminger, and Waters & Chase, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by Jared Cone against the Atchison, Topeka & Santa Fe Railroad Company, for alleged personal injuries. The alleged injuries were received on December 5, 1883; the action was commenced on September 26, 1884; the case was tried at the July term, 1885, and was brought to this court on January 16, 1886. The defendant in error, plaintiff below, moves to dismiss the action from this court, upon the ground that it has been brought to this court only upon a supposed case made for the supreme court, and that such case has not been properly settled, nor properly authenticated. The settlement of the case is shown by the certificate and attestation of the judge and the clerk of the court below, which reads as follows:

"The above and foregoing case-made contains a full and complete transcript of all the evidence, papers, motions and proceedings in the above-entitled cause; is now presented to the judge of said court for his allowance and signature, which is accordingly done this 6th day of January, 1886; and the clerk of said court is hereby ordered to attest the same and attach the seal of said court.

[Signed]

W. R. WAGSTAFF,

Judge Tenth Judicial District for the State of Kansas.

[Seal.]

[Signed]

Attest: L. C. TRICKEY,

Clerk District Court, Wyandotte County, Kansas.

Filed January 6, 1886.

[Signed]

L. C. TRICKEY, Clerk."

The principal objection urged against the foregoing case is, that in the certificate of the judge the word "allowance" is used, instead of the word "settlement," or some cognate word, like "settle," "settling," "settled," etc. Section 548 of the civil code, however, uses both the words "settle" and "allowed," and uses them in a way to indicate that with reference to settling cases for the supreme court, they are nearly synonymous. The time for making a case for the supreme court and for settling the same, may be extended by the court or judge, even beyond the term of the court; and after the case has been made, and such amendments suggested as are desired by the adverse party, then it is provided by said section that "the case and amendments shall be submitted to the judge, who shall settle and sign the same, and cause it to be attested by the clerk, and the seal of the court to be thereto attached;" and "the exceptions stated in a case-made shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the time they were taken." (Civil Code, § 548.)

We think that the case is properly authenticated, and we think that it is sufficiently shown by the certificate of the judge and the attestation of the clerk, that the case was properly settled. Whether much or little of the pleadings, much or little of the evidence, or much or little of the instructions are contained in the case, is not a matter for dismissal. If the case has been properly settled, signed, attested, filed, authenticated, and brought to this court, this court must consider it upon its merits, and cannot dismiss it.

"Where a case for the supreme court is made and served upon the defendant within proper time, and is settled and signed by the judge of the district court, and properly attested and filed by the clerk, it will be presumed, in the absence of anything to the contrary, that the case was settled in accordance with the requirements of the law." ( Douglass v. Parker, 32 Kan. 593, 5 P. 178. See also Fearns v. A. T. & S. F. Rld. Co., 33 Kan. 275.)

We cannot dismiss the case from this court because of the alleged irregularities, but will have to determine the case upon its merits.

The plaintiff's home was and is at Burrton, in Harvey county, Kansas. The injuries were received at Newton, in the same county; the plaintiff's attorneys reside in Shawnee and Leavenworth counties; and this action was commenced and tried in the district court of Wyandotte county. Before any trial was had, however, the defendant asked for a change of venue, claiming, and filing an affidavit in support of the claim, that the defendant could not have a fair and impartial trial in that county; but the plaintiff resisted, and the court below overruled the application. The injuries complained of resulted from a fall from one of the defendant's railroad trains, but how the fall happened, whether from the negligence of the plaintiff, or the defendant, or both, or from pure accident, is a disputed question, and a doubtful one. This train was a passenger train operated between Kansas City and Nickerson, and was called train "No. 4" when it was going eastwardly, and train "No. 3" when it was going westwardly. James E. Corcoran was the conductor of this train, Charles W. Chapin and the plaintiff were the brakemen, Edmund Reynard was the locomotive engineer, and Thomas O. Jones was the fireman. The plaintiff had worked for the defendant as brakeman on this train, or these trains, numbers 3 and 4, and under this conductor, for more than nine months before the accident occurred. On the evening of the accident, the train, No. 4, arrived from the west at Newton at 8:05 o'clock in the evening, and left on the same evening at 8:38 o'clock or later. At Newton, as was usual, another car, which had arrived from Wichita, was put into this train, near the rear end, and between the sleeping-car and the other cars. There were nine cars in all in this train. Just as the train left, or shortly afterward, the plaintiff fell from the train, and received the injuries of which he now complains. The alleged negligence was, the alleged starting of the train before the bell-cord was tested, without notice or signal to the plaintiff, and with a sudden jerk. It was the duty of the plaintiff to couple the bell-cord before the train was started, and it was the duty of the conductor to know from some source that the same was done before starting the train. In the present case the train was not started for about a quarter of an hour, and perhaps a half an hour, after the regular time for it to be started. The train was at Newton more than a half-hour, and perhaps nearly an hour. The plaintiff claims that just before the train was started, he went between the Wichita car and the sleeping-car and stood upon the guard-rails with a lantern in his right hand or on his right arm, and coupled the bell-rope, and was then stooping to get down, when the train started with a sudden jerk which caused him to fall; and in falling he was caught somewhere by some portion of the cars, and was carried or dragged about one thousand feet from where he fell, when he was released from the cars and left lying on the ground. Both the facts and the law with regard to all these matters, and as contended for by the plaintiff, are disputed by the railroad company.

The plaintiff was a large man, weighing at the time of the accident about 240 pounds. He weighed still more at the time of the trial. After the accident, the plaintiff was found lying on the ground within about one thousand feet from the place where the train was started, and the lantern was found within about ten or fifteen feet from him. These trains, numbers 3 and 4, were usually started from Newton without the conductor or any other of the trainmen except the plaintiff, knowing whether the bell-cord was coupled or not, and generally before the bell-cord was coupled; and the plaintiff, although he knew this, never complained of this to anyone, or suggested that the same was unsafe. The injuries received were the tearing of the plaintiff's clothes, the laceration of his skin on his left side, injuries to his right hand and wrist requiring the amputation of his little finger, injuries to his right leg so that it had to be amputated about four inches below the knee, and the fracture of his skull on the right side, and also loss of time and wages. His wages at the time of the accident were $ 55 per month. It does not appear that he was at any expense for medical aid, or assistance, or for nursing. The plaintiff in his petition claimed $ 50,000 damages. The jury rendered a verdict for that amount in his favor, and this, as they stated, was for "actual damages" only. The court below gave the plaintiff the option of taking a judgment for $ 25,000, or a new trial, and the plaintiff took the former, and judgment was rendered accordingly in his favor for $ 25,000 and costs. The other passenger trains of the defendant, operated between Kansas City and Nickerson, were numbered "1" and "2...