OPINION
ROSS, J.
The
appellee sued the appellant to recover damages for personal
injuries received while a passenger on one of its passenger
trains which was derailed and thrown down a high embankment.
The jury returned a general verdict in favor of the appellee,
assessing his damages at fifteen hundred dollars, and also
returned answers to numerous interrogatories submitted by
both parties.
The
complaint--after the formal allegations that the appellant
was a common carrier of passengers, and that the appellee was
a passenger on one of its passenger trains, consisting of an
engine and baggage car, two passenger coaches and a box car,
in which fruit was being transported, which ran off the
track, and that the appellee was thereby thrown from his seat
against the side and top of the car, greatly injuring
him--contained specific allegations of the causes which
occasioned the accident.
The
specific allegations are as follows:
"The
said car ran off said track by reason of the following
causes, namely:
"The
railway track, at the place where the car so ran off, was
imperfectly and negligently fastened to the cross-ties. The
cross-ties were rotten and insufficient by reason thereof to
hold the spikes and other fastenings by which the rails were
held to said ties. Said railway embankment was not ballasted
sufficiently to hold said ties in place. Said ties were so
rotten that they at once broke in small pieces when said cars
ran off the rails and upon said ties, and thereby threw said
cars off the railway embankment and turned
said cars over as aforesaid. Said fruit car was not properly
constructed to be run in a passenger train, being much too
short and having wheels too small. Said fruit car was not
furnished with an air brake, but, on the contrary, had only a
hand brake, and that of improper material, and so constructed
that it dropped down beneath said car immediately before said
car went off the track, and dragged upon the cross-ties on
said track, and thereby jerked said ties out of place, and
displaced the rails attached thereto, and threw said fruit
car and the car in which the plaintiff was riding, as
aforesaid, off the said track, as aforesaid. Said fruit car
was not properly and securely fastened to the trucks thereof,
but was so loosely attached thereto that, as it ran upon said
railway track, it wabbled from side to side, and finally said
wabbling threw the same from the track and tore the ties
loose from said track, and, in consequence thereof, the car
in which the plaintiff was riding was thrown from the track
and turned over, as aforesaid, and he sustained said injuries
wholly from the negligence and fault of the defendant, and
from no negligence or fault of his."
Plaintiff
further says "that at the place where said train so ran
off the track the same was a steep grade, sloping downward in
the direction the train was then running at the time of the
injury aforesaid, and said train was then running at great
speed,
to wit, forty-five miles or more per hour, and said great
speed contributed to said injury."
The
appellant assigns but one error in this court, namely:
"The court erred in overruling appellant's motion
for judgment in its favor upon the special findings of the
jury, notwithstanding the general verdict."
It is
firmly and clearly settled, so much as to require no citation
of authorities, that a general verdict is not controlled by answers to interrogatories, unless such
answers are irreconcilable with the general verdict. Where a
fact is found, in answer to an interrogatory, which precludes
a recovery at all, the fact so found controls the general
verdict. But when the facts found are only such as to
preclude a recovery upon one branch of a case, and no facts
are found which would preclude a recovery upon another
branch, it will be presumed that the jury based their verdict
upon the branch upon which no facts were found inconsistent
with such general verdict.
The
appellee averred, in his complaint, many things which caused
the accident resulting in his injury. It was not necessary,
in order to entitle him to recover, that he prove all the
causes which brought about his injury.
This
leads to the inquiry: Do the answers to the interrogatories
preclude a recovery upon every branch?
The
answers to the interrogatories negative the allegations of
the complaint as to the air brake, the construction of the
fruit car, the grade of the track, and the speed of the
train; hence, the general verdict can not stand upon either
of these branches. It is clear, therefore, that the general
verdict, if it can be sustained at all, must rest upon some
other charge in the complaint. The remaining charges are:
"The railway track, at the place where the car so ran
off, was imperfectly and negligently fastened to the
cross-ties. The cross-ties were rotten, and insufficient by
reason thereof to hold the spikes and other fastenings by
which the rails were held to said ties. Said railroad
embankment was not ballasted sufficiently to hold said ties
in place. Said cross-ties were so rotten that they at once
broke in small pieces when said cars ran off the rails and
upon said ties, and thereby threw said cars off the railway
embankment, and turned said cars over as aforesaid. Said
fruit car was not furnished with an air brake, but, on the
contrary, had only a hand brake, and that of
improper material, and so constructed that it dropped down
beneath said car immediately before said car went off the
track, and dropped upon said cross-ties on said track and
thereby jerked said ties out of place and displaced the rails
attached thereto and threw said fruit car and the car in
which plaintiff was riding as aforesaid."
The
interrogatories propounded by the plaintiff, bearing upon
these questions, are as follows:
"Int.
4. Was said fruit car furnished with a hand brake negligently
attached thereto, so that one of the shoes thereof dropped
off, and the brake rod and beam thereof dropped to the ground
as said car ran along said track, and thereby caused said car
to be thrown from said track? Ans. Yes.
"Int.
5. Was said railway, on said 17th day of July, 1889,
constructed of ties on said track, which were rotten and so
imperfect that the same would not hold the spikes securely
which fastened, or were intended to fasten, the rails to the
cross-ties? Ans. Yes.
"Int.
6. Did the fruit car in said train run off said track at the
day aforesaid, and did the rotten ties, if the same were
rotten, contribute to said car running off the same? Ans.
Yes; but rotten ties did not contribute to car running off
said track.
"Int.
7. Was the rotten condition of said cross-ties perceptible,
so that their rotten condition could have been discovered by
an inspection thereof before said car so ran off said track?
Ans. Yes.
"Int.
8. Was said brake on said fruit car so that it could be seen
and the construction thereof discovered before said car ran
off said track? Ans. Yes.
"Int.
9. Did the running off of said fruit car cause the passenger
car in which the plaintiff was riding as a passenger to run
off the track? Ans. Yes.
"Int. 10. Was said fruit car so
constructed as to be safe to run the same in a passenger
train? Ans. Yes."
And the
following of the interrogatories submitted by the defendant:
"Int
4. Were not the injuries set forth in the complaint caused by
the derailment of the fruit car, or other car, at a point at
least three hundred feet south of where the track was torn
up? Ans. Yes.
"Int.
5. Did not said derailed car, after it was derailed upon the
cross-ties, travel for a distance of at least one hundred
feet before it was turned over? Ans. Yes.
"Int.
6. Was not the fruit car, hauled in the train upon which
plaintiff was riding, carefully inspected and examined by car
inspectors, before it was put in the train on the morning of
the day of the accident, at Cairo, Ill.? Ans. Yes.
"Int.
7. Were not the car inspectors who examined said car
inspectors of skill and experience? Ans. Yes.
"Int
8. Was not said fruit car a new car constructed to be used in...
