Beeler v. The Atchison

• Citation: 107 Kan. 522,192 P. 741
• Decision Date: 09 October 1920
• Docket Number: 22,815
• Court: United States State Supreme Court of Kansas
• Parties: C. W. BEELER, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

192 P. 741

107 Kan. 522

C. W. BEELER, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 22,815

Supreme Court of Kansas

October 9, 1920

Decided July, 1920

Appeal from Edwards district court; ALBERT S. FOULKS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Jury May Not Indulge in Mere Conjecture and Speculation. It is not within the province of the jury to indulge in mere conjecture and speculation for the purpose of finding negligence.

2. SAME--Injury to Shipment of Live Stock--Evidence Insufficient to Sustain Finding of Jury. In an action against a carrier to recover for injuries to a shipment of colts and mares, it was alleged the injuries were caused by negligence of the defendant's employees who, in attempting to attach the car to the freight train, carelessly and negligently backed the engine against it with great speed, force and violence by which several of the animals were knocked down and killed and others maimed and injured. Held, that a motion to set aside a finding that the injuries to the animals were caused by negligence in making the coupling and starting the engine should have been sustained because it was unsupported by evidence.

William R. Smith, Owen J. Wood, Alfred A. Scott, all of Topeka, and William Osmond, of Great Bend, for the appellant.

W. E. Broadie, of Kinsley, for the appellee.

OPINION

PORTER, J.:

The railroad company appeals from a judgment in plaintiff's favor for damages on account of injuries to a carload of colts and young mares that were being shipped from Kinsley to Syracuse.

The petition alleges that after the animals had been loaded in a car for shipment the defendant's employees in charge of the freight train, in attempting to pick up and attach the car, carelessly and negligently backed the train with great speed, force and violence against the car and that a number of the animals were knocked down and killed, and others seriously maimed and injured.

The plaintiff's evidence showed that about midnight on the 26th of April, 1917, he loaded a car at the stockyards in Kinsley, and that when he and his employees went away the horses were standing and in good shape; that an hour or more afterwards train No. 31 came to the station, and after doing other work, picked up this car and moved it a distance of about 700 feet to a point in front of the station at Kinsley, when it was discovered that something had happened to some of the horses, that three or four were dead and many others were down and had been tramped upon and others were plunging around.

A demurrer to the plaintiff's evidence was overruled. The brakeman and fireman testified to the effect that when they passed the car on the main track before picking it up, the horses were raising a disturbance which the employees thought was due to the light of the locomotive shining upon them. No investigation was made at the time as to the condition of the horses in the car. These two witnesses and the engineer testified that nothing unusual occurred in picking up the car; that there was no violent contact or anything likely to shake up the car or its contents. When the car was moved to the station the conductor discovered that several of the horses were dead, that others were down and that they appeared much excited. The plaintiff was notified of the condition and called up one of his employees, who went to the stockyards and assisted the railroad men in unloading the car. Besides the animals that were dead, several had broken legs, and all appeared to be more or less injured. The defendant produced the depositions of two witnesses, who testified that they were traveling with their families in wagons from Colorado, and camped near the stockyards about 100 feet from the chute where the horses were loaded; that they heard the men loading the horses; that the horses seemed to be very much excited and that the loading was only accomplished with difficulty; that almost immediately after the men who had loaded the car went away, the horses seemed to be struggling and kicking; that this continued for considerable time and was plainly distinguishable above the noise of the switch engine coming to pick up the car.

The jury made a finding to the effect that the defendant was negligent in "not using proper care in coupling and starting engine" with the car. A motion to set aside the finding as unsupported by the evidence was overruled. Aside...