Gilbert v. The Missouri Pacific Railway Company

• Decision Date: 07 July 1914
• Docket Number: 18,555
• Citation: 142 P. 270,92 Kan. 697
• Parties: IRA GILBERT, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

142 P. 270

92 Kan. 697

IRA GILBERT, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

No. 18,555

Supreme Court of Kansas

July 7, 1914

Decided July, 1914.

Appeal from Nemaha district court; WILLIAM I. STUART, judge. Opinion denying a second petition for a rehearing filed July 7, 1914. (For original opinion of reversal see 91 Kan. 711, 139 P 380; for opinion denying a rehearing see ante, p. 281, 140 P 883.)

Petition for rehearing denied.

SYLLABUS

SYLLABUS BY THE COURT.

PERSONAL INJURIES--Railroad Crossing--Contributory Negligence--Wantonness of Defendant Not Shown. A second petition for a rehearing, presented by permission of the court, considered, and held, that the statement of facts contained in the original opinion is correct and that the case of Railway Co. v. Baker, 79 Kan. 183, 98 P. 804, does not govern this controversy.

W. P. Waggener, J. M. Challis, both of Atchison, and R. M. Emery, jr., of Seneca, for the appellant.

R. F. Hayden; and George P. Hayden, both of Topeka, for the appellee.

OPINION

OPINION DENYING A SECOND PETITION FOR A REHEARING.

BURCH J.

By permission of the court, the plaintiff presents a second petition for a rehearing. It is said that the court misapprehended the facts in its two former opinions, that the case is important, that the plaintiff is a physical wreck, is poor, and that justice should be done.

Just why the court should be reminded that the case is important is not apparent. It heard the parties in oral argument, considered in consultation the briefs and abstracts, and wrote an opinion covering every essential feature of the controversy. (Gilbert v. Railway Co., 91 Kan. 711, 139 P. 380.) It then considered the petition for a rehearing, again considered the briefs and abstracts, and wrote a second opinion. (Ante, p. 281.) Hence the case has already been given the consideration which an important case might claim.

That the plaintiff has suffered grievously from his injuries and is in embarrassed financial condition is a matter greatly to be lamented. But however much the members of the court may deplore the plaintiffs misfortunes, justice demands that the court find a legal liability on the part of the defendant before it compels the defendant by judicial process to contribute to the plaintiff's relief.

While the cases of other litigants wait, the court will take the time necessary to make another disposition of the plaintiff's two principal contentions--that the court misstates the facts and refuses to follow a former decision ( Railway Co. v. Baker, 79 Kan. 183, 98 P. 804), settling the law of the case.

It will be remembered that the defendant's track crosses Fourth street of the town of Centralia. The plaintiff, without giving any attention to a train approaching in full view, drove his team, hitched to a farm wagon, on the track in front of the train. A collision occurred and the plaintiff was severely injured. At the trial the court instructed the jury that the plaintiff was guilty of negligence, and could not recover because the defendant was also negligent, but submitted to the jury the question of wantonness on the part of the trainmen. The fireman had observed the plaintiff's approach and did not call the engineer's attention soon enough to give the alarm by whistling to avert the collision. The jury returned special findings of fact, and with them a general verdict for the plaintiff. The judgment was reversed and judgment was ordered for the defendant on the ground that the special findings did not warrant the inference of wantonness. The first petition for a rehearing presented the precise points urged now, and was overruled.

The material findings of the jury, except No. 47, that the bell was rung when the engine was near the crossing, and No. 43, that the engineer and fireman were in their proper places on the engine just before the collision, are printed in the original opinion at pages 714, 715. In narrating the essential facts, and elsewhere in the original opinion, it was said, on the basis of the special findings of fact, that the alarm whistle was sounded just before the collision occurred. The plaintiff disputes this statement and says the jury found to the contrary. The court quoted at length from its decision in the Baker case, and held that that case did not apply. (91 Kan. 711.) The plaintiff disputes the court's estimate of the Baker case and says it does govern the present controversy.

The plaintiff adds nothing to what has already been considered in the two former opinions except this:

It is said that the plaintiff made the "one statement of facts before this court" in his brief responding to the defendant's (appellant's) brief. In this brief the statement was made that the last time the train whistled was 1500 feet east of Fourth street. In a reply brief by the defendant this statement was not referred to. Starting with these two facts, a statement in one brief not corrected in another, the plaintiff devotes something like a page of typewriting to them, when they suddenly swell to this remarkable proportion:

"It was a fixed settled fact between the attorneys for plaintiff and defendant. Neither of them doubted but what the jury had settled this point. And we believe that when the attorneys for the parties agree upon the facts that were established upon the trial, that it is not the duty of the Appellate Court to interfere, especially in behalf of a railroad company who always employs attorneys thoroughly competent to take care of the interest of their clients."

The defendant filed the first brief. The very first thing contained in that brief, after a statement as to the character of the case and the assignment of errors, is a specific statement of the facts which were conceded. Of course the "agreement" and other things contained in the plaintiff's brief which followed are not among the conceded things. The defendant's brief then went on, and under the various assignments of error stated the testimony essential to an understanding of them, and so, taken as a whole, presented the defendant's view of the facts. The reply brief was devoted to answering the plaintiff's argument on matters of law. When the plaintiff's brief was examined the court found that the parties were not of one mind as to the facts, and so it went to the abstracts to find out the actual facts for itself. As frequently occurs in vigorously contested cases, the court is not able to say that it agrees entirely with either of the parties.

The statement in the plaintiff's brief, however, was fortified by authority. It gave the page of the abstract where the supposed fact could be found. It referred specifically to page 57 of the abstract. That page of the abstract contains findings 41 to 49, inclusive. The plaintiff makes no contention that these findings have any relation whatever to an alarm whistle given after it appeared the plaintiff was about to attempt the crossing in front of the train. Both petitions for a rehearing plant themselves squarely on finding 52 alone, to be found on page 58 of the abstract, and, as will be shown hereafter, the plaintiff studiously ignores finding 42, to be found on page 57 of the abstract.

The court is not assisted to just conclusions by the plaintiff's injecting into the case assertions of the character of the one under consideration, and it is not the first. In the first petition for a rehearing, responding to a statement by the court that the whistle was sounded and the bell rung, the plaintiff said that all his witnesses testified to the contrary and that the jury found to the contrary. This was said in face of the record that the plaintiff's witness, Haskett, testified positively to the sounding of the whistle, and the jury found specially that the bell was rung. The figment that the plaintiff "had his back turned toward the train," adverted to in the opinion on rehearing (ante, p. 283), belongs to the same class. The daily crossing of the track by a large number of school children has been reiterated as a fact showing the evil-mindedness of the trainmen, although there was no pretense at the trial that any school child was anywhere in the neighborhood of the crossing at the time of day the train passed. To make it appear that the trainmen were recklessly threatening the lives of the people of Centralia, it has been repeatedly said that the crossings were "two a minute during business hours." One witness for the plaintiff said he held a watch on the plaintiff during the time the plaintiff walked over to the south of the track, got his team, and then drove back--a period of two minutes. Not a word comes from this witness, or from any other witness in the case, that anybody else crossed the track during that time--the very time the train was approaching--and, as shown in the original opinion, the possible number of people who might cross the track in the course of a day became inconsequential in view of the actual conditions at the time this train approached.

The court is compelled to advert to this men-in-buckram method of dealing with facts because one ostensible ground for the petition for a rehearing is to set the court right concerning the facts in the case.

The action of the court is likewise given implications that are unwarranted. For example, it is said that the court can not take the fireman's and engineer's testimony as against a finding of the jury. The court has twice announced once in the original opinion and once in the opinion on rehearing, that the decision was rested on the findings of the jury. The court has not adopted the testimony of this witness or of that witness as the basis of its decision, and no language will be found in either opinion warranting such an inference....