The Missouri Pacific Railway Company v. Walters

• Decision Date: 09 May 1908
• Docket Number: 15,121
• Citation: 96 P. 346,78 Kan. 39
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. S. F. WALTERS
• Court: Kansas Supreme Court

96 P. 346

78 Kan. 39

THE MISSOURI PACIFIC RAILWAY COMPANY v. S. F. WALTERS

No. 15,121

Supreme Court of Kansas

May 9, 1908

Decided January, 1908.

Error from Marshall district court; SAM KIMBLE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Comparative. The doctrine of comparative negligence is not recognized in this state.

2. NEGLIGENCE--Degrees. The classification of negligence into three degrees is no longer recognized in this state.

W. J Gregg, and B. P. Waggener, for plaintiff in error.

W. W. Redmond, and Henry Elliston, for defendant in error.

OPINION

BURCH, J.:

The plaintiff obtained a judgment against the defendant for damages resulting from personal injuries which he alleged he sustained through the defendant's negligence. His evidence tended to show that he was riding upon one of the defendant's passenger-trains, claiming the rights and privileges of a passenger for hire. As he neared the station marking the end of his journey the conductor in charge of the train ordered and directed him to go out upon the platform of the car in which he was riding and to get down upon the lower step, and then without stopping the train ordered and directed him to jump off, which he did to his injury.

The court gave the jury two separate instructions in which a comparison of the plaintiff's negligence with that of the defendant was specifically authorized as a means of determining the case. The court did not stop with a recognition of degrees of negligence according to the classification of the Roman law, but adopted and presented to the jury the doctrine of comparative negligence. In a number of early cases this court yielded its assent to the academic classification of care, diligence and prudence into three degrees, slight, ordinary and extraordinary, and the corresponding classification of negligence into the three degrees of slight, ordinary and gross. But the doctrine of comparative negligence has never been indorsed in this state. (K. P. Rly. Co. v. Pointer, 14 Kan. 37, 66; U. P. Rly. Co. v. Young, 19 Kan. 488 [concurring opinion of Valentine, J., p. 495]; K. P. Rly. Co. v. Peavey, 29 Kan. 169, 44 Am. Rep. 630; A. T. & S. F. Rld. Co. v. Morgan, 31 Kan. 77, 1 P. 298; C. K. & N. Rly. Co. v. Brown, 44 Kan. 384, 24 P. 497; A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491, 501, 40 P. 919; Railroad Co. v. Henry, 57 Kan. 154, 45 P. 576.) In the Morgan case it was said:

"This instruction adopts the doctrine of comparative negligence, and is therefore erroneous. Under this instruction, if the plaintiff and the railroad company were both guilty of negligence contributing to injuring and killing the stock, the plaintiff would be entitled to recover damages if his negligence was less than that of the company. The law has not been thus announced by this court. We do not indorse the doctrine of comparative negligence. The rule is properly laid down in Sawyer v. Sauer, 10 Kan. 466. If the trial court had instructed the jury that if the negligence of the plaintiff was only slight, or the remote cause of the injury, he might still recover, notwithstanding such slight or remote cause, the instruction would be within the rule; but when the jury were instructed to compare the negligence of the plaintiff with that of the defendant, the direction passed beyond the authoritative line, and became misdirection. This court has recognized degrees of negligence in many cases, but has never sanctioned any instruction permitting a jury to simply compare the negligence of the parties." (31 Kan. 77, 80.)

This being true, the instructions referred to were wrong. Other instructions were given of which no complaint is made, but they did not cure the error, and it is impossible to say the misdirection was not prejudicial.

It is a noteworthy fact that for many years the subject of degrees of negligence has been accorded no consideration in the administration of the law of this state. ...