Lindley v. Atchison

• Decision Date: 05 December 1891
• Citation: 28 P. 201,47 Kan. 432
• Court: Kansas Supreme Court
• Parties: D. C. LINDLEY v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPAMY

28 P. 201

47 Kan. 432

D. C. LINDLEY v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPAMY

Supreme Court of Kansas

December 5, 1891

Error from Sumner District Court.

THE opinion contains a sufficient statement of the case.

Judgment affirmed.

W. A McDonald, and Charles Willsie, for plaintiff in error.

Geo. R Peck, A. A. Hurd, Robert Dunlap, and O. J. Wood, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

D. C. Lindley brought this action against the railroad company to recover damages for personal injuries alleged to have been sustained while traveling on a stock train. The first trial of the case resulted in a verdict in his favor, but proceedings in error were prosecuted, and the judgment of the district court was reversed, and the cause remanded for a new trial. (Railroad Co. v. Lindley, 42 Kan. 714, 22 P. 703.) When the case was called for trial the second time, a jury was impaneled, after which the plaintiff by his counsel stated his case to the jury, and the evidence by which he expected to sustain it. He then offered in evidence a deposition which had been taken, when the defendant objected to the reading of the same, for the reason that the amended petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant, and for the further reason that the statement made to the jury shows that the plaintiff was guilty of such contributory negligence as would preclude a recovery against the defendant. The objection was sustained by the court, and the jury discharged. The plaintiff brings the case ere upon a transcript of the record, asking a review and a reversal of the ruling of the district court.

The first question presented is, whether the court may dispose of the case upon the statement made by the plaintiff in opening his case. Such a statement is a part of the procedure of the trial. The code provides that, when the jury is sworn, the plaintiff or party who has the burden of proof may proceed to state his case to the jury, and the evidence by which he expects to sustain it. (Civil Code, § 275.) If the statements or admissions then made are such as to absolutely preclude a recovery, it would be useless to consume further time or to prolong the trial. The court is warranted in acting upon the admission of the parties the same as upon the testimony offered; and, as it may sustain a demurrer to the evidence of the plaintiff and give judgment against him, it would seem that when he stated or admitted facts which were fatal to a recovery the court might close the case at once. The same question arose in like manner in Oscanyan v Arms Co., 103 U.S. 261, 26 L.Ed. 539. Justice Field, who pronounced the judgment of the court, stated that --

"The power of the court to act in the disposition of a trial upon facts conceded by counsel is as plain as its power to act upon the evidence produced. The question in either case must be whether the facts...