Kansas City

• Decision Date: 09 February 1889
• Citation: 21 P. 770,41 Kan. 671
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY v. THOMAS B. KIER

21 P. 770

41 Kan. 671

THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY v. THOMAS B. KIER

Supreme Court of Kansas

February 9, 1889

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Motion for Rehearing.

THE facts are stated in K. C. Ft. S. & G. Rld. Co. v. Kier supra, and in the opinion herein, filed on June 7, 1889.

Judgment reversed.

I. P. Dana, and Chas. W. Blair, for the motion; Wallace Pratt, and Frank Hagerman, of counsel.

J. D. McCue, contra.

OPINION

Per Curiam:

In a very forcible and able argument counsel for the railroad company contend that another trial should be awarded, and to that end there should be a rehearing, instead of an affirmance, as directed in the opinion heretofore filed. One or two questions are submitted which were not presented upon the original hearing, and these, therefore, will not be considered. (The State v. Coulter, 40 Kan. 673; 20 P. 525.) All the other questions are sufficiently disposed of in the original opinion, excepting the one concerning the instructions as to gross negligence and exemplary damages. We stated in our former opinion that the testimony as to gross negligence, if any, was very slight, but that in view of the damages awarded, we were inclined to think that the instructions concerning punitive or exemplary damages were not sufficiently material to reverse the judgment. A reexamination of all the testimony convinces us that the negligence established was not wanton, willful, or malicious; one or the other of which elements must appear to justify punitive or exemplary damages. (Railway Co. v. Rice, 10 Kan. 426; Railway Co. v. Rice, 38 id. 402; Railway Co. v. Whipple, 39 id. 531.) Where there is no testimony showing that the negligence is so gross as to amount to wantonness, and no willful or malicious acts are proven, actual or compensatory damages merely, is the rule; therefore, to leave the question of punitive or exemplary damages to the jury, when there is no testimony which would warrant a verdict for such damages, is improper. (Railway Co. v. Peavey, 29 Kan. 169; Kennedy v. Railroad Co., 36 Mo. 351; Traction Co. v. Orbann, 12 A. 816.)

It is probable, as heretofore stated, that, considering the age of Kier and his injuries, the damages awarded him were compensatory only; but as the jury were instructed that if they found gross negligence "to have entered into and formed or caused the injuries of which Kier complains," they might allow punitive or exemplary damages, we cannot, with absolute certainty, say the verdict of $ 7,000 was not enhanced thereby. This much, however, is clearly established by the verdict, separate and apart from the erroneous instructions: First, that culpable negligence is to be imputed to the railroad company as charged in the petition; second, that Kier was not guilty of any negligence directly or proximately contributing to his injuries; and third, that upon the testimony, he was entitled to recover his actual or compensatory damages.

We have concluded, considering the testimony and verdict, that as w...