Kansas City, Ft. S. & M.R. Co. v. Chamberlin

• Decision Date: 10 February 1900
• Citation: 60 P. 15,61 Kan. 859
• Parties: KANSAS CITY, FT. S. & M. R. CO. v. CHAMBERLIN.
• Court: Kansas Supreme Court

60 P. 15

61 Kan. 859

KANSAS CITY, FT. S. & M. R. CO. v. CHAMBERLIN.

Supreme Court of Kansas

February 10, 1900

Error from district court, Johnson county; John T. Burris, Judge.

Action by L. Chamberlin against the Kansas City, Ft. Scott &amp Memphis Railroad Company. From a judgment for plaintiff defendant brings error. Affirmed.

Waggener, Horton & Orr and Pratt, Dana & Black, for plaintiff in error.

Ogg &amp Scott, for defendant in error.

OPINION

PER CURIAM.

This was an action to recover damages for negligently burning mill and elevator buildings and machinery and other property. The plaintiff recovered a verdict and judgment in the court below, to reverse which the defendant has prosecuted error to this court. The errors complained of are:

First, the refusal of the court to continue the case to enable the defendant to better prepare itself for trial upon the question of the value of the various items of property alleged to have been destroyed. The defendant claimed that a continuance was necessary because of the plaintiff’s refusal, some days before the beginning of the trial, to give his deposition in disclosure of the character and value of the several items of property burned up, and also because of the absence of a couple of witnesses who had special knowledge of the character and value of such items. A careful consideration of this claim of error does not convince us that it is well taken. Continuances are so largely in the discretion of the trial court that we think the plaintiff in error has failed to show an abuse of that discretion, or that prejudicial error was committed against it in refusing to continue the case.

It is next claimed that much of plaintiff’s evidence as to values was given by witnesses who did not show themselves qualified to testify as to values. This claim is likewise unfounded.

It is next claimed that the court erred in instructing the jury that the contributory negligence of the plaintiff, if shown to exist, did not constitute a defense to the action, but, under 1 Gen. St. 1897, c. 70, § 32, should be considered only in reduction of damages; and that the court likewise erred in refusing to instruct the jury that the contributory negligence of the plaintiff, if shown to exist, constituted a defense to the action. The instruction given and the refusal to instruct raised the same question. Whatever the law may be, whatever error the court committed in this respect is unavailing to the plaintiff in error.

The following special question was asked and answer given by the jury: "Q. Did the plaintiff use usual and ordinary care— that is, such care as an ordinarily prudent person would use— in allowing the roof on said mill building to remain in the condition it was in, after having knowledge that it had been set on fire on former occasions? A. Yes." Inasmuch as the jury found the plaintiff guiltless of negligence in the respect mentioned in the above question and answer, the refusal of an instruction predicated upon the assumption of his possible negligence, and the giving of an erroneous instruction predicated upon the like assumption, were harmless errors. The only act of negligence charged against the plaintiff besides the keeping of an old, dilapidated building in a dry and inflammable condition, was the maintenance of such building a foot or two on defendant’s right of way. The building had been thus erected partially on the right of way without objection by defendant, and had also remained there since the time of its erection, in 1869, without objection by it. Having been thus licensed by the defendant to occupy a portion of its right of way, it cannot now be heard to urge negligence in the doing of that which it had so long permitted.

It is next claimed that the damages awarded were excessive. This raised nothing but a controverted question of fact, into which we are not at liberty to inquire.

It is next claimed that some of the evidence and findings of the jury were outside the issues in the case. The plaintiff, in his petition, only alleged against the defendant the negligent operation of its engine and train, whereby the fire was communicated. He did not allege defective machinery or other appliances as a ground for a claim of negligence. The plaintiff introduced no evidence of defective machinery or appliances. The testimony of his witnesses, however, tended to show that the...