2. It is the duty of a railway employer to use ordinary care to maintain a reasonably safe roadway and appliances. The evidence reviewed, and held to support a finding of negligence in omitting such care.
3. The court authorized a finding of damages for "sums paid out" by plaintiff for medical services. He had paid none, but had become liable therefor to the amount of fifty dollars. Held, that the error did not affect the substantial rights of defendant upon the merits, and was not ground for a reversal.
4. Compensation for prospective damages on account of the permanency of a personal injury are recoverable.
5. The amount of the verdict ($3,650,) held to furnish no cause to reverse.
6. On appeal, only those exceptions are available which have been decided by the trial court.
7. The court permitted a certain question to be asked a witness, over an exception; but the witness declined to respond to it. Held, that the ruling was harmless.
8. Instructions unsupported by evidence of the facts for which they call are erroneous.
9. It is not error to refuse an instruction, of which the substance is otherwise given.
(Syllabus by the Judge.)
Appeal from circuit court, Henry county; D. A. DE ARMOND, Judge.
Action by one Gorham against the Kansas City & Southern Railway Company to recover for personal injuries caused by the negligence of defendant. From a judgment for plaintiff, defendant appeals. Affirmed.
The instructions in the cause in the trial court were the following:
Given for plaintiff: "(1) The court instructs the jury that it was the duty of the defendant to have kept its ties, roadbed, and track in a reasonably safe condition for the passage of trains over the same, and to have furnished, for use on said road, cars and appliances, which were reasonably safe for use thereon. And if you find, from the evidence, that, at the time of the accident, plaintiff was in the employ of the defendant as conductor of a freight train, and that defendant's roadbed and track were not in a reasonably safe condition for the passage of trains over the same at the place of the accident, on account of rotten ties, being therein, or on account of failure to properly ballast said roadbed, or on account of the inside rail of the curve, near said accident, being higher than the outside rail thereof, and that defendant knew or by the exercise of ordinary care might have known of the condition of said ties, roadbed, and track before the accident; and if you further believe from the evidence
that, at the time of the accident, defendant had provided for use in said train a caboose with a defective brake, and had placed in said train a car so heavily loaded that it would not adjust itself to the track in passing over the same, and that by reason of the rotten condition of said ties, if they were rotten, or by reason of defendant's failure to ballast said road, if it did so fail, or by reason of the rail on the inside of said curve being higher than the outside rail thereof, if said inside rail was higher, or by reason of the overloaded condition of said car, if it was so overloaded, or by reason of the defective brake on caboose, if it was so defective, or if by reason of all said things, said train was wrecked, without the fault of plaintiff, and he was thereby injured, — you will find for plaintiff. (2) If you find for plaintiff, you will, in assessing his damages, take into consideration his age and condition in life; the injury sustained by him, if any; the physical pain and mental anguish suffered and endured by him on account of said injury, if any; his loss of time, if any; such damages, if any, as you believe, from the evidence, he will sustain in the future, as the direct effect of such injury; such sums as he has paid out for medical attention on account of said injury, if any; together with all the facts and circumstances in evidence in the cause, — and assess the damages at such sum as, from the evidence, you may deem proper, not exceeding fifteen thousand dollars, the amount sued for."
Given for defendant: "(2) There is no evidence before the jury that the engineer in charge of the train at the time of the accident was incompetent, and that his incompetency was the proximate cause of the injury complained of by plaintiff; and that issue is withdrawn from your consideration." "(9) The mere fact that there may have been decayed ties in the roadbed at the point of the accident does not authorize you to find for the plaintiff. You must further believe that the decayed condition of the ties, if they were decayed, was the cause of the wreck, and that defendant knew, or by the exercise of ordinary care might have known, of the decayed condition of the ties, and that the wreck was caused by the fact that the ties were decayed; and, unless you so believe, you will find for the defendant on this issue. You are not authorized to find for plaintiff from the fact alone that the ties were rotten at the point where the wreck occurred. (10) Although you may believe, from the evidence, that the plaintiff was a conductor on the defendant's road, and, while in the employ of the defendant, his train was wrecked and injured thereby, and that the wreck was caused by the roadbed of defendant being in a defective condition, or by reason of the cross-ties thereon being decayed and rotten, or by reason of the brakes being defective, or by reason of one of the cars being overloaded, or by reason of the inside rail being higher than the outside one, — all of these facts, if true, do not authorize you to find a verdict for the plaintiff. Before he can recover, you must believe that defendant knew, or by the exercise of ordinary diligence could have known, that the track was in a defective condition, or that the cross-ties thereon were rotten, or that the brakes were defective, or that the cars were overloaded, or that the inside rail was higher than the outside one; and, unless you are so satisfied, you will find for defendant. (11) If the plaintiff knew that the car was overloaded, if such was the fact, or if the same was such that any ordinarily observant person would have known at the time of receiving the same, and the wreck was caused by the overloaded condition of the car, then plaintiff cannot recover. (12) If the plaintiff knew of the defective condition of the brakes, if they were defective, or could have known, if they were of such a character as an ordinarily observant person would have known, and the condition of the brakes caused the wreck, plaintiff cannot recover. (13) If the plaintiff knew of the defective condition of the roadbed, if it was defective, or if the defect therein, if there was any, was such as an ordinarily observant person would have known before entering the service of the defendant, then plaintiff cannot recover, if such defect was the proximate cause of the injury. (14) If the plaintiff knew that the cross-ties in defendant's roadbed were rotten, if they were rotten, or if the condition of the ties were such that an ordinarily observant person would have known before the accident, and he continued in the employment of said company after becoming possessed of such knowledge, then he cannot recover, if the condition of the ties was the proximate cause of the injury. (15) If the plaintiff knew that the inside rail of defendant's road was higher than the outside one, if such was the fact, or if the same was of that character that an ordinarily observant person would have known, and he continued in the employment of defendant, or entered thereon, with knowledge of the fact, he cannot recover, if the height of the rail was the proximate cause of the injury. (16) The law did not require defendant to provide an absolutely safe track and machinery for the use of its employes, and the fact that defendant's may not have been in an absolutely safe condition does not authorize you to find for plaintiff. All that the law required of defendant was that its track should be in a reasonably safe condition; and if, at the time of the wreck, you believe that defendant's roadbed, ties, and rails were in a reasonably safe condition, you will find for the defendant on the issue of defective tracks and ties." "(19) The court instructs the jury that although you may believe, from the testimony, that defendant's track was in a defective condition; that there were rotten ties in the same; that the curve in the vicinity of the place of accident had its inside rail higher than the outside one; that there was a car in said train with defective brakes, and also one was overloaded; and that these facts, or any or all of them, caused the accident, — yet you cannot find for plaintiff, if you further believe, from the evidence, that plaintiff knew, or by the exercise of ordinary care could have known, of the existence of said facts. (20) The court instructs the jury that if you believe
from the testimony, that plaintiff was an experienced railroad man, both as engineer and conductor, at the time of the accident, and that he permitted the train under his charge to be run at an unusual and reckless rate of speed, and that said unusual and reckless rate of speed of the train was the proximate cause of the accident, and that but for said rate of speed the accident would not have happened, notwithstanding defects, if there were any, in the track or cars or manner of loading the cars of the defendant, then the plaintiff cannot recover, and your finding will be for defendant. (21) The court instructs the jury that the plaintiff, in performance of his...
