SHERWOOD, J.
The petition contains two specific charges of negligence against defendant. The first alleges that defendant negligently took into its train a car that was rotten, defective, unsafe, etc. The second avers that the train in which this was being transported was run at a rapid and dangerous rate of speed, etc. Both the foregoing grounds of negligence are charged in the petition to have caused the wreck and plaintiff's injuries. The answer is a general denial. The instructions which it will be necessary to notice hereafter are the following, to wit:
Plaintiff's instructions, given by the court: "(1) The court instructs the jury that if you believe, from the evidence in this case, that at the time of the wreck of the defendant's train the timbers of the car No. 7,919, Union Line, mentioned in evidence, were rotten and decayed, and that by reason thereof the said car was not in a reasonably safe condition for use in defendant's said train, and that defendant knew of, or by the exercise of ordinary care might have known of, the condition of said car, and that by reason of the said condition of said car, if the jury believe, from the evidence, it was in such condition, the said car broke, and the said train was wrecked, and plaintiff, while in the line of his employment, and without fault on his part, was injured thereby, the jury must find for the plaintiff. (2) If the jury find for the plaintiff, in estimating his damages they will take into consideration not only his age and condition in life, the physical injury inflicted, and the bodily pain and mental anguish endured, but also any and all such damages, if any, which it appears, from the evidence, will reasonably result from said injury in the future, not to exceed, in all, the sum of $25,000."
Defendant's instructions which were given are as follows: "(1) Even if the jury should find, from the evidence, that said Union Line car 7,919 was the first one of the train to leave the track, still this, in and of itself, does not prove that said car was unsafe, unsound, or improperly loaded. (2) It is further charged in petition that said train on which plaintiff was injured was run at a rapid and dangerous rate of speed. You are instructed that defendant was guilty of no negligence in running said train at the rate of speed disclosed by the evidence. (3) Even if the jury should find and believe, from the evidence, that some portion of said car 7,919, Union Line, after the accident, appeared to be unsound or defective, yet the plaintiff is not entitled to recover herein unless the jury believe and find, from the preponderance of the evidence, that said defects were known to defendant prior to said accident, or by the exercise of ordinary care upon its part said defects or unsoundness could have been discovered, by ordinary inspection upon the part of said defendant. (4) `Ordinary care,' as used in these instructions, means such care as an ordinarily prudent person would exercise under the circumstances detailed in evidence. If, therefore, the jury believe, from the evidence, that defendant, through its proper servant or servants, after having received said Union Line car 7,919 for the transportation of flour, mentioned in evidence
inspected the same at Atchison, Kan., then the presumption is that said servant exercised ordinary care in the inspection of said car, and did his duty, and it devolves upon plaintiff to show, by a preponderance of the evidence, that said defendant failed to exercise ordinary care in inspecting said car; and unless the jury shall find, from the evidence, that said plaintiff has overcome the presumption aforesaid by the greater weight of all the testimony, it should find the issues herein in favor of defendant, notwithstanding said car may have been defective, and by reason thereof caused the injury to plaintiff. (5) Even if the jury should find, from the evidence, that said Union Line car 7,919 was the first one on the train to leave the track, that it was unsound, and that it caused the wreck and plaintiff's injury, still, unless the jury believe, from the greater weight of the evidence, that defendant's servants failed to exercise ordinary care in inspecting said car before the accident, their verdict should be for the defendant. The jury are further instructed, in this connection, that, in the absence of any evidence to the contrary, the law presumes that the servants of defendant who inspected said car performed their duty properly. (6) The court instructs the jury that defendant was not required, under the law, upon receipt of said Union Line car 7,919, to make tests to discover hidden defects in the construction, or in the materials used in the construction, of said car. (7) If the jury believe, from the evidence, that there was nothing patent upon the face of said Union Line car 7,919 indicating that it was unsound and unfit for use, and that there was nothing to indicate, upon reasonable inspection of same by the servants of defendant, that said car was unsound and unfit for the use it was then put to in transporting said flour, then your verdict must be for the defendant, notwithstanding you may also believe that said car was unsound, and that said unsoundness caused the wreck which resulted in plaintiff's injury. (8) The jury are further instructed that the defendant was not bound to furnish to plaintiff absolutely safe appliances and cars with which to work, but was only required to use ordinary care in inspecting this and other foreign cars which came upon its road, so as to ascertain whether any defects or unsoundness appeared thereon which were open to inspection, and which could be ascertained by ordinary inspection of same. (9) You are further instructed that, in considering the charges of negligence alleged against defendant, you are confined solely to said Union Line car 7,919, and cannot consider any other supposed negligence which may have caused the injury to plaintiff. (10) The court instructs the jury that defendant was guilty of no negligence in running its train at the rate of speed at which it was run at the time of the accident. If the jury are unable to determine, from the evidence, whether said Union Line car 7,919 caused plaintiff's injury, or whether it occurred from some other source, then it is your duty to return a verdict for defendant, as the burden of proof herein devolves upon the plaintiff. Even if the jury should find and believe, from the evidence, that said Union Line car 7,919 was the first car which went off defendant's track, yet this does not prove that said car was unsound or defective, and your verdict must still be for defendant, unless you further find and believe, from the greater weight of the evidence, that said car was unsound and defective, and either known to have been so by defendant, or by the exercise of ordinary care upon its part could have been known, and, further, that said unsoundness of said car directly caused plaintiff's injuries. (11) The burden of proof in this cause is upon the plaintiff. Before the jury can, therefore, find for the plaintiff, it must believe and find from the preponderance or greater weight of all the evidence — First, that the Union Line car 7,919, next to defendant's tender, caused plaintiff's injuries; second, that said car was defective, unsafe, and unfit for the purposes for which it was then used; third, that said defects were known to defendant, or by the exercise of ordinary care upon its part could have been ascertained by reasonable inspection upon the part of said defendant. Unless the jury find, from the greater weight of all the evidence, in favor of plaintiff upon all three of the propositions aforesaid, the verdict must be in favor of the defendant. (12) The jury are instructed that, although you may find and believe, from the evidence, that the train upon which plaintiff was acting as brakeman was, at the time of the injury, being run at a rapid or dangerous rate of speed, and by reason thereof was ditched or wrecked, and the plaintiff injured thereby, yet, under the evidence in this case, your finding should be for the defendant. (13) Unless the jury believe, from the preponderance of the evidence, that the Union Line car 7,919 broke before it left the track, then your verdict must be for defendant, notwithstanding you may further believe that some portion of said car was unsound or rotten."
The case was tried in the circuit court of Bates county, upon change of venue, at the June term, 1894, and a verdict returned for plaintiff in the sum of $15,000. Motions for new trial and in arrest were filed and overruled, and a bill of exceptions duly filed in said cause. The cause was brought to this court upon a transcript of the evidence, and was originally docketed in division No. 1 of this court. The case was certified to the court in banc, without an opinion. The first opinion was written by MACFARLANE, J. (37 S. W. 829), in which the writer hereof dissented. The defendant filed a motion for rehearing, which was sustained by the court, the cause reargued, and the last opinion, filed by the same judge, now stands as the opinion of the...
