Saar v. The Atchison
Decision Date | 11 March 1916 |
Docket Number | 19,959 |
Citation | 155 P. 954,97 Kan. 441 |
Court | Kansas Supreme Court |
Parties | MYRTLE Y. SAAR, as Administratrix, etc., Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant |
Decided, January, 1916.
Appeal from Neosho district court; JAMES W. FINLEY, judge.
New trial ordered.
SYLLABUS BY THE COURT.
1. DAMAGES--Evidence Sufficient against Demurrer. The evidence has been examined and found to be sufficient against a demurrer thereto, and sufficient to sustain the findings of the jury.
2. FEDERAL EMPLOYER'S LIABILITY ACT--Death--Excessive Verdict--Option of Plaintiff. In an action for damages under the federal employer's liability act, where a verdict rendered is excessive because the jury did not substantially diminish the damages on account of the negligence of the injured employee, this court will offer the plaintiff the option of accepting a judgment for a designated sum or a new trial.
William R. Smith, Owen J. Wood, Alfred A. Scott, and Harlow Hurley all of Topeka, for the appellant.
H. P. Farrelly, and T. R. Evans, both of Chanute, for the appellee.
OPINION
The plaintiff recovered judgment for the death of her husband, John C. Saar. The defendant appeals.
This action comes under the provisions of the federal employer's liability act. (Part 1, 35 U.S. Stat. at Large, ch. 149, 4 U.S. Comp. Stat. 1913, §§ 8657-8665.) John C. Saar was a brakeman on the defendant's road and was killed at Independence by falling from or being thrown from the top of a freight car under the wheels of the train on which he was working. The jury made special findings of fact as follows:
1. The defendant's first complaint is that there was no evidence that the alleged jerking of the train was of such a violent or unusual character as to indicate negligence on the part of the engineer, and therefore the demurrer to the evidence should have been sustained; and that the jury's findings of the defendant's negligence are contrary to and unsupported by the evidence.
The evidence to support the findings was, that the tops of the cars and the ground were covered with ice and sleet; that at the time of the accident, about 6:30 p.m., sleet was falling; that the train men were picking up three or four cars in the yards; that after making a coupling, the deceased went on top and was walking over the cars; that the tops were slick and he walked "with a little caution"; that the train by that time was moving; that it jerked two or three times as he walked; that the switching was "pretty rough"; that as he stepped from the second car to the third he grasped the brakewheel on one of the cars and stepped upon the brakewheel platform; that the cars jerked again and he fell between them; that the brakewheel was about two feet above the top of the car and was connected with the brake by an iron rod which extended through a platform at the end of the car about two feet below the top; and that the deceased was standing on this platform holding to the wheel when he fell. From this evidence men might reasonably come to different conclusions concerning the negligence of the defendant in jerking the train. That made the question one for the jury, and it would have been error for the court to have sustained a demurrer to the evidence of the plaintiff. It necessarily follows that there was evidence sufficient to sustain the findings of the jury.
If the deceased was guilty of contributory negligence, his negligence must have been more than a one-ninety-first part of all the negligence that caused...
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