Ratliff v. The Union Pacific Railroad Company

• Decision Date: 06 April 1912
• Docket Number: 17,575
• Parties: W. F. RATLIFF, Appellee, v. THE UNION PACIFIC RAILROAD COMPANY, Appellant
• Court: Kansas Supreme Court

122 P. 1023

86 Kan. 938

W. F. RATLIFF, Appellee, v. THE UNION PACIFIC RAILROAD COMPANY, Appellant

No. 17,575

Supreme Court of Kansas

April 6, 1912

Decided January, 1912.

Appeal from Riley district court.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS -- Killing of Stock -- Negligence -- Inconsistent Findings. In an action against a railroad company for the death of cattle, the claim of liability being based upon a defective cattle guard, a finding that a proper cattle guard would not have prevented the cattle from getting on the track is inconsistent with a verdict for the plaintiff.

2. NEW TRIAL -- No Motion -- Inconsistent Findings -- Equity. Under the provision of the present code that the supreme court on appeal may direct such judgment as justice requires, without regard to irregularities in the proceedings of the trial court, a new trial may be ordered upon the reversal of a judgment because of inconsistency between the verdict and the special findings, although no motion for one was filed, where it is evident that if the trial court had taken this court's view of the meaning of the findings a new trial would have been asked and granted.

R. W Blair, B. W. Scandrett, and C. A. Magaw, for the appellant.

John E. Hessin, and John Clarke Hessin, for the appellee.

OPINION

MASON, J.:

W. F. Ratliff recovered a judgment against the Union Pacific Railroad Company on account of cattle killed by one of its engines, and the defendant appeals. The claim of liability was based upon the defective construction of a cattle guard, over which the animals were found to have gone upon the track from the highway. The jury found specifically that the cattle guard was not a proper one; that it was insufficient in every respect in which it differed from the cattle guards used by another company. But they also returned a negative answer to the question, "Is there any cattle guard shown by the evidence that would have prevented plaintiff's cattle going upon defendant's right of way?" No motion for a new trial was filed by either party. The defendant asked the court to render judgment in its favor upon the special findings.

In order for the plaintiff to recover it was necessary for him to establish not only that the cattle guard was insufficient, but that the cattle were killed because of its insufficiency. If a properly constructed cattle guard would not have kept the cattle from getting upon the right of way, then there was no connection between the defective guard and the death of the cattle. The answer to the question quoted says explicitly that such was the case. Therefore there is an evident conflict between the general verdict and the special findings.

Manifestly the trial court believed that what the jury meant was not that these particular cattle would have got upon the track in spite of any cattle guard that could have been built, but that no cattle guard shown by the evidence would have made it impossible for the cattle to get upon the right of way, that is, would have absolutely prevented any cattle from crossing it, under any circumstances. The probability that the jury actually meant this is increased by the fact that there was evidence that while the guards in use elsewhere would turn cattle more...