The Missouri Pacific Railway Company v. Dorr

• Decision Date: 07 April 1906
• Docket Number: 14,573
• Citation: 73 Kan. 486,85 P. 533
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. RICHARD N. DORR
• Court: Kansas Supreme Court

85 P. 533

73 Kan. 486

THE MISSOURI PACIFIC RAILWAY COMPANY v. RICHARD N. DORR

No. 14,573

Supreme Court of Kansas

April 7, 1906

Decided January, 1906.

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

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Injury to Employee--Defective Appliance--Notice. Before an employee of a railroad company can recover from the company for injuries resulting from a defective appliance on a locomotive, of which defect the railroad company had no actual knowledge, he must show that it had existed for such a length of time that the company should have discovered and remedied it.

2. JURY AND JURORS--Special Finding Too Indefinite. There was a finding by the jury that the injury in question would not have occurred but for the defect, and that the company had no actual knowledge of its existence. They also found, in response to a question as to the duration of the defect, that it had existed "for some time previous to the accident." Held, that the latter finding is too indefinite to support a recovery.

3. JURY AND JURORS--Second Finding Also Indefinite--Presumption on Review--Waiver. At the instance of the defendant the jury were required to make a more definite answer to the question, but the second answer was no more specific than the first, and, as the second effort to obtain a specific answer had failed, it is not to be presumed that a better result would have been obtained by still other efforts; nor did the defendant waive its right to object to the finding by failing to request the court to have the effort repeated.

4. JURY AND JURORS--Finding and Evidence. A finding of a jury upon a specific and controlling question must be deemed to be as full and definite an answer as the testimony in the case will warrant.

J. H. Richards, and C. E. Benton, for plaintiff in error; Smyth & Helm, of counsel.

Houston & Brooks, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.

Richard N. Dorr was the head brakeman on a freight-train of the Missouri Pacific Railway Company. On his fourth trip over the line he fell from the steps of the locomotive and the wheels passed over and crushed his legs, making it necessary to amputate one of them above, and one below, the knee. He brought this action, alleging that the injury was due to the negligence of the railway company. In his testimony he related the circumstances of the unfortunate occurrence, saying substantially that he was riding on the engine, and as the station of Freeport was approached it was suggested to him that he make ready to get off, which he proceeded to do; that he grasped the handhold of the tender and reached for the handhold of the cab at the opposite side of the passageway, and, it being considerably lower than the other handhold, he leaned over, and just as he was about to catch it there was a jar of the engine which threw him off his balance; and that he then placed his foot on the lower step, which, being defective, tilted him off, his handhold broke loose, he fell to the ground, and rolled under the wheels, receiving the injuries mentioned. In his petition the negligence imputed to the railway company was the sudden checking of the train, the improper position of the handholds, the defective step, and the condition of the ground upon which he fell, causing him to roll toward the track. The railway company alleged, and offered testimony tending to show, that the step was not defective, and its condition was the main point in dispute between the parties. It was insisted by the company that in any event Dorr knew of the existing conditions, and that his own negligence contributed to the injury. The trial resulted in a verdict for Dorr, and the jury awarded him damages in the sum of $ 35,000. There was no claim that the injury was malicious, wilful, or wanton, and hence no part of this exceptionally large award was exemplary damages.

It is earnestly contended that the evidence does not prove the alleged negligence of the railway company, and it is also argued that it affirmatively shows that the injury was due to a want of care on the part of Dorr. Of this branch of the case it may be said that in some respects the testimony is not satisfactory, but it cannot be held that the finding that the company was negligent is without support, nor would the court be justified in saying, as a matter of law, that a recovery by Dorr was barred by his own negligence.

The railway company insists that it is entitled to judgment on the findings, claiming that they in effect acquit it of the charge of negligence. It appears from the evidence and the findings that the liability of the railway company is based principally upon its negligence in maintaining a defective step. To question No. 18, which was, "If you find that said step was out of repair, state in answer to this whether you find plaintiff would have been injured if said step had not been out of repair," the jury answered, "No." To hold the company for injuries to an employee because of defective machinery or appliances it is necessary that the company should have had knowledge of the defect, or that it ought to have had such knowledge by the use of ordinary care. There was a finding by the jury that the step on the engine was out of repair at the time of the injury, and in answer to another question as to the nature of the defect the jury answered: "The stirrup was bent up in the center at the bottom --bolt was loose, and flanges broken." To the special question, "What person or persons in the employ of the defendant are shown by the evidence to have had notice prior to the accident in question that said step was out of repair?" the jury answered, "No one." The special interrogatory, "If you answer question No. 13 in the affirmative, state for how long a time said step had been out of repair," was answered by the jury, "For some time. " The railway company moved the court to require the jury to answer the question more definitely, and the judge stated, "I presume they are entitled to a more definite answer to that, as to how many days or weeks," and allowed the motion. Later the jury returned with the enlarged answer, "For some time previous to the accident." These findings do not warrant a recovery. Whether the defect existed for such a length of time as to charge the railway company with notice of the defect was an important consideration. Notice or knowledge cannot be presumed unless the duration and character of the defect were such as should have been discovered by the railway company by the exercise of ordinary care and diligence. In Harter v. A. T. & S. F. Rld. Co., 55 Kan. 250, 38 P. 778, it appeared that an injury to an employee was caused by a defect in a railway-track. The court remarked:

"This, however, is not enough to warrant a recovery against the defendant. There must be evidence fairly tending to show either that the defendant knew of the...