Atchison v. Hays

• Decision Date: 01 September 1898
• Docket Number: 350
• Court: Kansas Court of Appeals
• Parties: ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JAMES H. HAYS

54 P. 322

8 Kan.App. 545

ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JAMES H. HAYS

No. 350

Court of Appeals of Kansas, Southern Department

September 1, 1898

Opinion Filed September 21, 1898.

Error from Cowley district court; JAMES MCDERMOTT, judge pro tem. Affirmed.

Judgment affirmed.

A. A Hurd, and Stambaugh & Hurd, for plaintiff in error.

Pollock & Lafferty, for defendant in error.

OPINION

DENNISON, P. J.:

This action was commenced in the district court of Cowley county by the defendant in error to recover from the plaintiff in error damages sustained by the burning of fruit-trees and hedge which were growing on his farm near Winfield. The petition alleged that the fire was caused by the plaintiff in error in the negligent operation of its railroad. Verdict and judgment were rendered for plaintiff below in the sum of $ 891.50 as damages, and $ 150 attorneys' fees. The railroad company brings the case here for review.

Counsel for plaintiff in error contend that the court erred: (1) In permitting the introduction of certain testimony; (2) in the giving of certain instructions; (3) in refusing to give certain instructions; (4) in discharging the jury without requiring them to answer certain questions; (5) in refusing to render judgment for plaintiff in error on the special findings of the jury; and (6) in overruling the motion of the plaintiff in error for a new trial.

The first ruling complained of was in permitting the cross-examination of the witness Hawkins as to the contents of a report from which he refreshed his memory during his examination in chief. In Stephen's Digest of the Law of Evidence, article 137, it is said: "Any writing referred to under article 136 (to refresh memory of witness) must be produced and shown to the adverse party if he requires it and such party may, if he pleases, cross-examine the witness thereupon." See 7 A. & E. Encycl. of L. 111.

We have carefully examined the instructions given by the court as well as those refused, and have followed closely the argument of counsel thereon, and conclude that the court fairly and fully instructed the jury on the law as applicable to the pleadings and the evidence.

The special questions to which the jury made the answer "Don't know" all relate to the competency and skill of the engineer and the condition of the engine and its appliances to prevent the escape of fire. We think the jury could have answered these questions under the evidence and should have been required to do so. However, the jury found that the negligence of the company consisted of "allowing accumulation of grass and combustible material on its right of way." We therefore cannot say that the plaintiff in error was prejudiced by the refusal of the court to require answers to the questions.

Counsel for plaintiff in error contend that, as the jury found that the company was negligent only in allowing the accumulation of grass and other combustible material on its right of way,...