The Atchison v. Potter

• Decision Date: 07 October 1899
• Docket Number: 11210
• Citation: 60 Kan. 808,58 P. 471
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JOHN POTTER, as Next-friend of George Potter, a Minor

58 P. 471

60 Kan. 808

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JOHN POTTER, as Next-friend of George Potter, a Minor

No. 11210

Supreme Court of Kansas

October 7, 1899

Decided July, 1899.

Error from Pawnee district court; J. E. ANDREWS, judge.

Judgment reversed and cause remanded for new trial.

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

Nelson Adams, G. P. Cline, and T. S. Haun, for defendant in error.

OPINION

JOHNSTON, J.:

This was an action brought against the Atchison, Topeka &amp Santa Fe Railway Company in behalf of George Potter, who was injured by a moving train in the yards of the company at Larned. It was alleged that while attempting to pass around one train another was negligently backed against him without signal, warning, or any precaution for his safety, crushing his foot so that amputation became necessary. The trial resulted in a verdict and judgment against the company for $ 5500.

Complaint is made of several rulings of the trial court on the pleadings, testimony, and instructions. The company asked the court to compel the plaintiff below to make his petition more definite and certain by setting forth the purpose of George Potter in crossing the yards where he did, and whether the accident occurred on a street or on the private grounds of the company, but the motion was refused. In this respect the petition was defective. It was important for the company to know whether the plaintiff below claimed the injury was inflicted at a public crossing or on its private grounds, and if on its private grounds, whether he was there by invitation of the company or as a trespasser, or whether he went there to board a train as a passenger, or was merely playing in the yards and was hurt while attempting to catch on a passing train. The duties of the respective parties on a street differ materially from those required of them on the private grounds of the company, and acts which would constitute negligence in one place could not be regarded as negligence or grounds of liability in the other. In order to prepare for trial and make its defense the company was therefore, entitled to know what claim in this respect the plaintiff below made.

Mrs Penrose was called as a witness and stated that she had talked with George Potter just a short time after he was injured, and heard him tell how the accident occurred, but the court would not permit the statement to be given. The company then offered to prove by her that in the conversation she then had he said that he was hurt while attempting to climb or hold upon a passing train. The evidence was excluded by the court on the ground that George Potter was incapable of understanding the nature of an oath, and that the court had previously refused to receive his evidence for the same reason. In this there was error. There is probably no more important kind of testimony than the declarations of suitors made against their own interests, and the admissibility of such testimony does not depend upon whether the person making such declarations recognizes or understands the nature of an oath. Infants who have not a due sense of the obligation of an oath may be...