Kansas City & P.R. Co. v. Ryan

• Decision Date: 06 January 1894
• Citation: 52 Kan. 637,35 P. 292
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY & PACIFIC RAILROAD COMPANY v. WILLIAM RYAN

35 P. 292

52 Kan. 637

THE KANSAS CITY & PACIFIC RAILROAD COMPANY v. WILLIAM RYAN

Supreme Court of Kansas

January 6, 1894

Error from Miami District Court.

THIS was an action for damages for personal injuries received by William Ryan while working for the Kansas City & Pacific Railroad Company as a section hand 5 1/2 miles south of Paola, Miami county. The petition asked $ 7,000 judgment because of the negligence and carelessness of the defendant (1) In not selecting a fit, sufficient and sound jack for raising railroad track; (2) and in not properly examining and inspecting said jack so sent and received for said work; (3) and in permitting said unfit, unsound and insufficient jack to remain provided and ready for use in said work, on account of which negligence a claw bar, thrown by the track's falling, on account of said jack breaking, was forced through the flesh and bones of plaintiff's cheek, rendering him unconscious, and causing him serious, painful and permanent injuries. The petition, by amendment, admitted that the doctor's and dentist's bills, and $ 30 in cash received of Beagle, claim agent of the railroad company, for nursing and medicines, had been paid or assumed by the company. The defendant, on August 12, 1889, filed its answer in which it admitted (1) that it was a corporation, and that the plaintiff, while in its employ, working under its section foreman, was struck and injured by the claw bar as stated in the petition, quoting the language of that part of same; (2) denied all other allegations in the petition; (3) charged that in May, 1889, it settled with him by agreeing to keep him on the pay roll on full time till he was able to work and pay his physician's bill, and $ 20 on his other expenses, and that it paid said $ 20 and fully complied with said agreement. August 20, 1889, Ryan filed his reply consisting of a general denial. February 4, 1890, the railroad company filed an amendment to its answer, in which it alleged, inter alia, that the defect was unknown to the company, and, by reasonable diligence, could not have been discovered, and further alleged disobedience by the plaintiff of the foreman's orders, but for which the injury would not have occurred. The amendment also denied all allegations of the petition it had not admitted. On the same day Ryan filed a reply, consisting of a general denial, to this amendment. Upon the trial, it was shown that the injuries to Ryan were occasioned by the breaking of a track or lifting jack, whereby a bar of iron was thrown against his face breaking his upper jaw and cheek bone on the left side, bruising and lacerating the flesh, and injuring him so that he was confined to his bed and unable to work from the time of his injury, April 22, 1889, until the latter part of July following, when he again obtained work as a section hand, and continued in that employment to the time of the trial, having been in the meantime promoted to section foreman. There is no dispute that the section men, under the direction of the foreman, John Ratliff, were raising a frog with the jack and track bars. When they had raised it high enough, they stopped to enable the foreman to see whether it was in line, letting go of their bars, and thus throwing all the weight on the jack. The jack broke, letting the track drop suddenly, throwing one of the bars across the track, where it struck Ryan, injuring him as stated. This action was begun on May 21, 1889. The trial occupied four days, and resulted in a verdict of $ 5,000 for Ryan. The railroad company moved for a new trial, which was overruled, to which exceptions were taken. It prepared, and, on June 24, 1890, filed its petition in error and made case in this court.

Judgment reversed and cause remanded.

C. H. Kimball, for plaintiff in error:

Many of the special findings of the jury were unsupported by any evidence, and were contrary to all the testimony in the case; others based upon a shadow of evidence were against the entire substance of the testimony from the witnesses on both sides of the case; others were evasive and not responsive to the questions; some were inconsistent with and contradicted others, and taken together they indicate that the jury was so biased and prejudiced against the defendant as to render it incompetent to try the case fairly.

We submit that a new trial should have been and should be granted, for the following reasons: (1) Many of the special findings are unsupported by any testimony, and are contrary to all the evidence. (2) Some of the special findings are contrary to the entire substance of the testimony, and are so slightly supported as to come within the rule laid down in A. T. & S. F. Rld. Co. v. Wagner, 33 Kan. 660, 667. (3) The findings are inconsistent with each other. A. T. & S. F. Rld. Co. v. Maher, 23 Kan. 163; Shoemaker v. St. L. & S. F. Rly. Co., 30 id. 359; C. I. & K. Rld. Co. v. Townsdin, 38 id. 78; A. T. & S. F. Rld. Co. v. Woodcock, 42 id. 348. (4) Many of the answers are evasive and irresponsive to the questions, and the court erred in not requiring the jury to answer them properly. A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567; L. T. & S.W. Rly. Co. v. Jacobs, 39 id. 204; K. P. Rly. Co. v. Peavey, 34 id. 473. (5) The answers are so evasive and unsatisfactory as to indicate that the defendant did not have a fair and impartial trial. U. P. Rly. Co. v. Fray, 31 Kan. 739.

The damages awarded are excessive and appear to have been given under the influence of passion and prejudice. We submit that, under all the circumstances of the case, the amount of $ 5,000 is so grossly excessive as to indicate of itself that the jury was influenced by passion and prejudice, and, taken in connection with the special findings, which show so plainly the animus of the jury, can lead to no other conclusion. U. P. Rly. Co. v. Hand, 7 Kan. 380; M. K. & T. Rly. Co. v. Weaver, 16 id. 456. In the Kier case, where the plaintiff, a railroad brakeman, 29 years old, lost his foot and part of his leg, a case of total disability for life, this court decided that more than $ 5,000 would be excessive damages. K. C. F. S. & G. Rld. Co. v. Kier, 41 Kan. 671. Comparing the two cases, and the relative condition of the two men, and $ 500 would be more than liberal compensation in this case.

The court erred in its instructions to the jury, and in refusing togive the instructions asked by the defendant. The jury were told, among other things, that they might award damages for mental suffering, not alone for the injury, and the bodily or physical pain which resulted from it, but also for the mental pain and suffering endured by the defendant, and for his disfigurement. The true rule in a case of this kind, based upon ordinary negligence, should be full compensation for all pecuniary loss which the plaintiff has or will suffer as the result of the injury. How much did the jury allow for mental suffering? No one knows; no one can tell. We have nothing to guide us. We think Greenleaf lays down the better rule, as follows:

"Injuries to the person or to the reputation consist in pain inflicted, whether bodily or mental, and in the expenses and loss of property which they occasion. The jury therefore, in the estimation of damages, are to consider, not only the direct expenses incurred by the plaintiff, but the loss of his time, his bodily sufferings, and, if the injury was willful, his mental agony also." 2 Greenl. Ev., § 267. See, also, Johnson v. Wells, 6 Nev. 224.

While the authorities are not harmonious on this proposition, yet we think, in cases of unintentional injury, where there is no malice, wantonness, or gross negligence, to allow the jury to award damages for mental suffering or for disfigurement--meaning only a scar on a man's face, as in this case, a scar so slight that the doctor had to look twice to see which side of the defendant's face had been hurt--is an unsafe rule, and does not tend toward the fair admeasurement of damages or the fair administration of justice in such cases.

Jno. C. Sheridan, for defendant in error:

The law regarding special questions to the jury provides that the court shall, upon the request of either party, submit to the jury such as are material. Code, § 286; 49 Kan. 672. The answers to such questions must be based upon competent evidence. Upon matters about which there is a conflict of evidence, the answers are conclusive, if there is any evidence for them to rest on, because it is the province of a jury to determine the weight of the evidence, the credibility of witnesses, and the facts proven. See 48 Kan. 150, 384; 46 id. 170, 511; 30 id. 106, 172; 33 id. 404, 667; 49 id. 177, 672; 50 id. 645; 47 id. 247, 397.

As to railroads, the law is: "The amplest skill and circumspection should be employed in the construction and equipment, and the material and machinery should be subjected to the due tests." Bish. Non-Contr. Law, § 1024; 1 Shearm. & R. Neg., §§ 194, 196, 197. See, also, Bish. Non-Contr. Law, §§ 644, 645, 647; 14 Am. & Eng. Encyc. of Law, 893, 894; 30 Kan. 601, 607.

It is the duty of the employer to make the work of his employe as safe as reasonably practicable. 47 Kan. 315; 41 id. 165, 750; 37 id. 111; Mo. Pac. Rly. Co. v. Dwyer, 36 id. 58.

The complaint of the sixth instruction to the jury is entirely unfounded. If it were possible, in view of the other instructions, to suspect that the jury might have been misled by it, the numerous special findings made by the jury and requested by the defendant below show conclusively that they were not misled.

There was not a proposition of law that was applicable to the case that was not covered by the instructions given, and the company was not entitled to have them repeated, and was not entitled to the improper instructions...