Sheppard v. The Wichita Ice and Cold Storage Company

• Decision Date: 07 May 1910
• Docket Number: 16,538
• Citation: 108 P. 819,82 Kan. 509
• Parties: L. H. SHEPPARD, Appellee, v. THE WICHITA ICE AND COLD STORAGE COMPANY, Appellant
• Court: Kansas Supreme Court

108 P. 819

82 Kan. 509

L. H. SHEPPARD, Appellee, v. THE WICHITA ICE AND COLD STORAGE COMPANY, Appellant

No. 16,538

Supreme Court of Kansas

May 7, 1910

Decided January, 1910.

Appeal from Sedgwick district court; THOMAS C. WILSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT -- Verdict and Evidence -- Judicial Notice -- Physical Facts Demonstrating that Evidence is False. Where there is some evidence tending to support a verdict, to justify an appellate court in overturning it on the ground that it is contradicted by the settled and unquestioned laws of nature or by some established principle of mathematics, mechanics, physics or the like, the undisputed physical facts must demonstrate beyond any reasonable doubt that the evidence is false and that the verdict is without support in fact or law.

2. PERSONAL INJURIES -- Verdict and Evidence. The evidence in this case examined, and held, that the physical facts are not shown to be such as to authorize the court to say that the story told by the plaintiff's witnesses is false or untrue.

W. E Stanley, R. R. Vermilion, and Earle W. Evans for the appellant.

C. T. Ferguson, for the appellee.

OPINION

PORTER, J.:

The plaintiff sued to recover damages. for injuries caused by his falling into an open tank of hot water while in the defendant's employ. The jury awarded him damages in the sum of $ 2000. The defendant appeals.

The defense was contributory negligence. The plaintiff had been in the employ of the defendant five and one-half days. He had only been at work in and about. the room where the accident occurred half a day. The room was undergoing repairs, and the floor was being taken up and the plaintiff was engaged in carrying out the lumber. The defendant sought to show that the room was so light that the plaintiff should have seen the tank before he stepped into it. The evidence shows that there were two skylights in the roof over the room, each six feet long and three feet wide; that there were several doors and windows, including two windows in the north about eighteen or twenty feet away, and an opening in the north wall seven feet by four feet, distant about twelve feet from the tank. In addition, the floor between the opening and the tank had been taken up. The plaintiff testified that at the time of the accident he was looking on the floor for a pinch bar, and was feeling along with one hand trying to find it; that it was so dark where he was that he did not see the tank and walked into it. He also testified that a pile of lumber on the floor obstructed to some extent the light from a door back of him, and that the skylights were obscured by dirt and smoke. He was corroborated by a witness who was present and testified that it was dark near the tank, from which there was a weak vapor of steam escaping at the time. There was also testimony that another tank, called the "brine tank," had been raised about four feet from the floor on account of the repairs which were being made, and that this tended to shut off a part at least of the light from the windows and openings.

There is only one proposition argued in the brief, which is, that the testimony of the plaintiff's witnesses is not to be credited or given any weight whatever because of the physical facts; that the size of the room and the number of doors and openings from which light was admitted being conceded, it is physically impossible that the testimony of the plaintiff's witnesses can be true.

It is said in the defendant's brief that "before this verdict can be sustained this court must feel satisfied that, notwithstanding all the windows and openings, it was so dark about the vat that the plaintiff could not see his danger." We do not so understand the law or the functions and authority of the court. We may have grave doubts whether it was so dark about the vat as to prevent the plaintiff from seeing his danger. The jury have said that it was. The question for us to determine is whether there is legal evidence in the record to support this finding. The defendant urges that in order to sustain the verdict the court would be required to ignore the evidence of its own senses and its own experience in like matters. The question is squarely presented, therefore, whether the physical facts in this case are such that we can say there is no legal evidence to support the verdict. A similar contention was raised in the "wool case" (Insurance Office v. Woolen-mill Co., 72 Kan. 41, 82 P. 513), where the court declined to disturb the verdict of a jury far more at variance with the undisputed facts and well-known laws of nature than is the verdict here. It was urged again, but unsuccessfully, upon another state of facts and circumstances in the recent case of Smith v. Railway Co., ante, p. 136.

Appellate courts do not hesitate to reverse a judgment where a principle of law judicially known to the court requires it, notwithstanding the trial court may not have taken judicial notice thereof. It is equally clear that appellate courts will take judicial notice of the unquestioned laws of nature, of the laws of mathematics and of physics; and where the trial court has refused to recognize them, and has approved a verdict supported by some evidence, but so far at variance with the undisputed physical facts as to demonstrate that the evidence is false and the verdict unjust, it becomes the duty of the appellate court to reverse the judgment. Speaking of the duty of an appellate court in this respect, Mr. Elliott, in his work on Evidence, says:

"Even though it may not be authorized to weigh evidence and pass upon the facts, it may, and should, so use its judicial knowledge as to bring about justice. Thus, there are often undisputed physical facts clearly shown in evidence, and by applying to them a well-known law of nature, of mathematics, or the like, it is demonstrated beyond controversy that the verdict or finding is based upon what is untrue and can not be true. In such cases it is very generally held that the appellate court should take judicial notice of the law of nature or mathematics or quality of matter, or whatever it may be that rules the case, and apply it as the trial court should have done." (1 Ell. Ev. § 39.)

This principle was recognized by the court in Young v. Railway Co., 57 Kan. 144, where the plaintiff, who was injured at a railroad crossing, testified that when within a distance of a hundred feet from the crossing she looked and listened for the train, and then stopped again and looked and listened, but did not see the train until she was...