The Atchison v. Chance

• Decision Date: 06 June 1896
• Docket Number: 8510
• Citation: 57 Kan. 40,45 P. 60
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. M. T. CHANCE, as Administrator of the Estate of John B. Finnegan, deceased

45 P. 60

57 Kan. 40

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. M. T. CHANCE, as Administrator of the Estate of John B. Finnegan, deceased

No. 8510

Supreme Court of Kansas

June 6, 1896

Decided January, 1896.

Error from Butler District Court.

Hon. C W. Shinn, Judge.

REVERSED AND REMANDED.

STATEMENT BY THE COURT.

ON December 1, 1890, John B. Finnegan, one of a gang of men employed by the plaintiff in error to relay its track with steel rails from a distance north of Augusta to that place was seriously injured by falling off a derailed hand-car and being run over by another which was following it. On August 21, 1891, he commenced his action against the railroad company to recover $ 20,000 damages by reason of said injury. He alleged that the hand-car on which he rode at the time was much worn by long usage and service, and was badly out of repair and unfit for use; that three hand-cars were used in transporting the men and carrying the tools from Augusta to the place of doing the work in the morning and back again in the evening; that it was the duty of the foreman to keep the cars at a safe distance apart, and to place the defective car behind the others; but, in returning from their work that evening, the defective car on which the plaintiff was riding was placed in the middle, and the hindmost car was negligently permitted to follow close upon it; that while propelling said defective car it came upon a rail that was badly battered, split, and in an unsafe condition, whereby said hand-car was derailed and the plaintiff thrown off behind the same and run over by the rear car, and he was greatly injured. On October 18, 1891, Finnegan committed suicide by hanging himself, and on December 2, 1891, the action was revived in the name of Hattie M. Finnegan, as administratrix, she being his widow. The action was tried at the March term, 1892, resulting in a judgment in favor of the plaintiff for $ 14,806.41, and this proceeding in error was brought to reverse said judgment. Since the case came here said Hattie M. Finnegan died, and M. T. Chance was appointed in her place as administrator, and the proceeding in error was revived against him.

William Dye was called as a juror and examined at some length by the respective counsel and by the court. He admitted that he had a feeling against railroads generally, which had existed for several years, and the following questions were propounded to and answered by him:

"Ques. Would it not require a continual effort on your part to deal with the railroad company in the same way that you would deal with an individual? Ans. Yes.

"Q. So believing and so feeling, Mr. Dye, don't you believe that you could not take this case in the same impartial way that you would take a case between two individuals? A. Perhaps not."

The plaintiff's counsel resisted the defendant's challenge for cause, and it was overruled by the court. Mr Dye was afterward challenged peremptorily, and the defendant exhausted all its peremptory challenges.

Mr. Schroeder was called as a witness for the plaintiff. He had been a section-foreman, and over the objections of the defendant he answered questions as follows:

"Ques. You may state, Mr. Schroeder, what are the duties of a section-foreman in the control of men in their work in the laying of steel, taking up of iron rails and laying of steel ones upon the track, where the gang of men go to and from their work on three hand-cars. Ans. To tell them the proper distance to run apart and instruct them to that effect.

"Q. Define, now, what other duties would devolve upon the foreman besides telling them what distance they should run apart. A. To see that his instructions be carried out.

"Q. What duties would devolve upon him as to the distance the cars should run apart? A. To tell them they should not run any closer than four telegraph-poles apart, and explain the dangers, and why."

Several witnesses testified to the despondency of Mr. Finnegan during his illness and suffering, and that he was much troubled by the sickness and confinement of his wife and the fear that he would leave her and the child in a dependent and helpless condition. The defendant moved to strike out this evidence as to trouble on account of the wife and the child, but the court overruled the motion. Witnesses were permitted, over the objections of the defendant, to give their opinions as to what Mr. Finnegan would be capable of earning in several different vocations in which he had never been employed.

As to the measure of damages, the court instructed the jury as follows:

"21. If you find, from a preponderance of the evidence in the case, under the instructions of the court, that the plaintiff is entitled to recover in this action, you may, in determining the amount of her recovery, take into consideration: (1) The pain and suffering, physical or mental, if any, undergone by the said John B. Finnegan as a result of the injury; (2) the money expended or liability incurred necessarily and reasonably, if any, by the said John B. Finnegan for medical attendance as a result of the injury; (3) the value of the time lost, if any, by the said John B. Finnegan, as a result of the injury; (4) the disability or diminished earning capacity, whether total or partial, temporary or permanent, incurred by the said John B. Finnegan as a result of the injury, and from these elements, or so many of them as you find are established by a preponderance of the evidence, assess the amount of plaintiff's recovery at a sum which you believe would fairly and justly have compensated the said John B. Finnegan for the injury sustained."

After the jury had been in consultation during a day and a night, they were permitted to come into court, when they asked the following question: "In estimating damages for permanent injury, if any, is the time limited to actual lifetime of injured?" The court in answering this question concluded as follows:

"You cannot allow plaintiff anything for the loss of the support and sustenance of her husband; if you find for the plaintiff, the question for you to determine is: What would have been a fair and just compensation for said Finnegan for the injuries sustained? What ought he fairly to have received for each and all the elements of damages mentioned in instruction number 21, which you may find sustained by the evidence, including any permanent disability sustained by him? And, in estimating damages for permanent injury, you are not limited to the time said Finnegan actually lived."

The verdict of the jury was made up of the following items: Doctor's bill, $ 861; mental suffering and anguish, $ 4,000; physical suffering, $ 6,000; loss of service from the time of the accident until death, $ 350; permanent injury, $ 3,595.40. The last item was explained by the following question and answer:

"Ques. For what length of time do you allow in estimating damages for permanent injury? Ans. A possibility of from 10 to 20 years."

The defendant moved for judgment in its favor on the answers of the jury to the particular questions of fact submitted to them, notwithstanding the general verdict, and further moved for a new trial, but these motions were overruled. Some other facts will appear in the opinion.

Judgment reversed and case remanded.

A. A. Hurd, W. Littlefield, and O. J. Wood, for plaintiff in error.

N. A. Yeager, and George Gardner, for defendant in error.

MARTIN C. J. All the justices concurring.

OPINION

MARTIN,...