Ft. Scott, Witchita & Western Railway Co. v. Fortney

• Decision Date: 08 April 1893
• Court: Kansas Supreme Court
• Parties: THE FORT SCOTT, WICHITA & WESTERN RAILWAY COMPANY v. J. M. FORTNEY et al

32 P. 904

51 Kan. 287

THE FORT SCOTT, WICHITA & WESTERN RAILWAY COMPANY v. J. M. FORTNEY et al

Supreme Court of Kansas

April 8, 1893

Error from Bourbon District Court.

THE opinion states the nature of the action and the material facts. Judgment for the plaintiffs, Fortney and another, at the October term, 1889. The defendant Company comes to this court.

Judgment affirmed.

J. H Richards, for plaintiff in error; C. E. Benton, and Dillard & Padgett, of

1. Under the pleadings in this case, the operating company only is liable. That company which solely employs, directs and controls the officers and men who are engaged in the operation of the defendant line of road as an entirety, so that the relation of employer and employe and master and servant exists, and to which the principle of respondeat superior can be applied, is the company which must respond in damages, without regard to the mere ownership or equipment. St. L. Ft. S. & W. Rld. Co. v. Willis, 38 Kan. 336; also see, 2 Thomp. Neg., p. 892; Cooley, Torts, pp. 531, 533; K P. Rly. Co. v. Wood, 24 Kan. 619; Union Trust Co. v. Cuppy 26 id. 754; St. L. W. & W. Rly. Co. v. Curl, 28 id. 623; A. T. & S. F. Rld. Co. v. Gibson, 42 id. 34; A. T. & S. F. Rld. Co. v. Davis, 34 id, 209; S. K. & P. Rld. Co. v. Towner, 41 id. 78.

2. The operating company was guilty of no culpable negligence in the operation of its engine, as alleged in the petition. The rule that "a party must adhere to the theory adopted at the trial," is no less binding in nisi prius than in appellate courts. Elliott, App. Proc.--"Waiver," p. 627, and "Holding to Trial-Court Theories," etc., p. 410. And it is held that asking instructions upon one definite and designated theory precludes the party from a different one. Louisville &c. Co. v. Wood, 113 Ind. 544, 564; Doty v. Gillett, 43 Mich. 203; Elliott, App. Proc., pp. 410, 414.

3. The court erred in not sustaining the demurrer to the evidence. This argument is manifestly involved and fully covered in the discussion of the previous assignments; for it is obvious that if plaintiffs below failed in their proof, either as to the operation or the negligence charged, as contended by us, the demurrer should have been sustained; otherwise not, as there was no other issue upon which some evidence was not introduced.

4. The jury was governed by passion and prejudice, as evinced by an excessive verdict, untruthful answers to special questions, and refusal to answer others. As to the verdict: It is shamefully excessive--for a larger amount even than proof showed the whole farm to be worth. As to the answers of the jury to the special questions: Every answer except No. 5, without a single exception, was either baldly and boldly against all testimony upon the question embraced, or evasive, and thus substantially subversive of the truth as established by that testimony. This and other courts have many times held that not only evasive and untrue answers imply passion and prejudice, but the very attempt to do either likewise implies it. St. L. Ft. S. & W. Rld. Co. v. Willis, 38 Kan. 331, citing U. P. Rly. Co. v. Fray, 31 id. 739.

5. The court erred in refusing to require the jury to specifically and directly answer the questions, as requested upon the return of the verdict and special findings. This court has declared the law governing courts in such cases in language with no two meanings. U. P. Rly. Co. v. Fray, 31 Kan. 739; St. L. Ft. S. & W. Rld. Co. v. Willis, 38 id. 331, and other cases.

6. The court erred in giving and refusing certain instructions. See K. P. Rly. Co. v. Butts, 7 Kan. 308; Toledo &c. Rld. Co. v. Larmon, 67 Ill. 68; 2 Wood, Rly. Law, § 326.

7. The defendants in error were guilty of contributory negligence. Our position is, that upon the whole of the evidence, of both plaintiffs and defendant below, plaintiffs were guilty of contributory negligence. The plaintiffs admit that the company had previously burned off the right-of-way. They do not deny the statements of defendant's witnesses, in charge of the right-of-way, that it was burned off, and "specially to protect plaintiffs' farm." Moreover, it was proven by many witnesses, and not denied by plaintiffs below, that the orchard itself was umbrageous with weeds, grass, and dead trees. Everything invited a fire, from the point of its incipiency to its uttermost ends of destruction. Tumble weeds and grass and other combustible matter strewed the whole way. Upon the part of plaintiff in error, there was diligence and special effort to protect the Fortneys' premises.

W. R. Biddle, for defendants in error:

The first question in this case is: Does this record affirmatively show that the pleadings upon which the case was tried are incorporated in the record? We think the case does not show such fact. A case-made must show affirmatively and beyond question all of the pleadings upon which the case was tried. A citation of authorities upon this proposition is hardly deemed necessary, as the court has frequently decided this point.

1. If the pleadings copied into this record were the pleadings upon which the case was tried, they show, first, the allegations that the plaintiff in error is a corporation duly organized and doing business as such in the state of Kansas, operating a railway from the city of Fort Scott westerly through Bourbon, Allen and Woodson counties, in this state. That allegation is not denied by the answer. It is, therefore, an admitted fact in this case, that the plaintiff in error is a railway corporation duly organized, and operating a railway in the state of Kansas. The presumption is that the admitted owner of a railroad operates it. And the burden to prove to the contrary is upon the defendant, and this is a question for the jury. Peabody v. Oregon Rly. & N. Co., 26 P. 1053; Ferguson v. Railroad Co., 63 Wis. 145.

2. If the Missouri Pacific is a corporation, and in fact owns the stock and bonds, does it make any difference whether the road is sued in the name of the Fort Scott, Wichita & Western, or the Missouri Pacific? The liability of one would not increase the liability of the other, nor would it decrease it. It would be identically the same person. To sum it up, it would be in this shape: One railroad owns another because it owns all of the stock and bonds. If you sue one you sue the other; if you sue the other you sue the one, both being identical. The best test of the force of the evidence tending to prove that the Missouri Pacific is a corporation and was operating this line of road is by asking this question: Would the evidence in this case justify a jury in finding against it, if it were the defendant? It would be doubtful, indeed.

This court has decided that a stock or bondholder, though a railroad corporation, is not responsible for the negligence of the corporation issuing the stock and bonds. A. T. & S. F. Rld. Co. v. Cochran, 43 Kan. 225. This last case also decides that, to entitle a railroad corporation to own the stock and bonds of another company, the lines of the two companies must connect.

3. It is claimed that the operating company was guilty of no negligence in the operation of its engines, as alleged in the petition. This question was determined by the proofs in the case, and the jury found against the corporation. The supreme court of this state has frequently decided that this is purely a question for the jury.

4. It is claimed by counsel for plaintiff in error that the jury was governed by passion and prejudice; and upon this question they adduce as evidence of the fact that the verdict was excessive; that the jury made untruthful answers to special questions, and refused to answer others. We regard the decision in the court below, that no question was proper under the evidence with reference to the existence of any other corporation, or as to whether these employes were paid by any other corporation, or whether this road was operated by any other railroad corporation, as correct, because there was no evidence whatever in any sense that proved the existence of any railroad corporation. We challenge this entire record for a scintilla of proof that there is a railroad corporation existing in this country under the corporate name of the Missouri Pacific Railroad Corporation. The jury answered that they did not know whether the Missouri Pacific Railway Company was a railroad corporation engaged in operating a system of railroads in the state of Kansas or not. They could have answered the question under this evidence, "No," because, as we have suggested, no evidence of its incorporation was introduced.

5. Counsel claim that the court erred in giving and refusing instructions. We do not care to discuss this matter further, except to say that all of the evidence in this case had reference to appliances in use on the different railroads spoken of. There was no evidence with reference to appliances known to railroads.

6. Plaintiff in error claims that the defendants were guilty of contributory negligence. As a matter of law, this question of contributory negligence was submitted to the jury. Evidence was offered on both sides by men of long experience, as to the value of these trees destroyed, as to the value of the fence and other property destroyed. There was a wide divergence of opinion as to the amount of damage. The jury weighed the testimony fairly, and made a very moderate estimate of the damage.

Upon the question of contributory negligence, the old rule was "When it can be shown that the injury would not have happened except for the culpable negligence on the part of the injured, concurring with that of the other party, no action can be...