Union Pac. Ry. Co. v. Sternbergh

• Decision Date: 08 December 1894
• Citation: 38 P. 486,54 Kan. 410
• Parties: THE UNION PACIFIC RAILWAY COMPANY v. THOMAS J. STERNBERGH, as Administrator of the estate of Charles W. Brown, deceased
• Court: Kansas Supreme Court

38 P. 486

54 Kan. 410

THE UNION PACIFIC RAILWAY COMPANY v. THOMAS J. STERNBERGH, as Administrator of the estate of Charles W. Brown, deceased

Supreme Court of Kansas

December 8, 1894

Error from Douglas District Court.

ACTION to recover for the death of Charles W. Brown, who was killed in a wreck on the Union Pacific railway, near the junction at Lawrence, of the Leavenworth branch with the main line. The action is brought by Thomas J. Sternbergh, as administrator, for the benefit of Charles F. Brown, who was the son and only heir of Charles W. Brown. It is alleged that, under the direction of the company, a train of cars was sent from Wamego to Lansing, for the purpose of obtaining coal, and that they were required to go over the main line to the Lawrence junction, and from there to Lansing over the Leavenworth branch, making it necessary to pass over about 25 miles of the branch line in the nighttime. It is alleged that the company was negligent in failing to provide a suitable switch to connect the branch line with the main line at the junction point, and had also failed to provide proper signals or signs indicating the approach to the point of junction and, further, that the agents and servants who directed and controlled the train were unskillful and negligent in its management, so that the train was run through an open switch at the junction and wrecked, whereby Brown, a brakeman, was instantly killed. The answer of the company was a general denial, and a further defense was that Brown was injured and killed through his own fault and negligence. The general verdict was rendered against the company for $ 3,000, and among other special findings of fact the following were returned:

"Q 1. Was Charles W. Brown guilty of any negligence which caused the wreck in which he lost his life? If so, state what it was. A. No.

"Q 2. Was Charles W. Brown, at and just before the time of his death, willing to support his wife and son? A. Yes.

"Q 3. Did Charles W. Brown ever abandon his son, Charles F. Brown? A. No.

"Q. 4. What was Charles W. Brown's age at the time of his death? A. 47 years.

"Q. 5. Was he a sober and industrious and healthy man at the time of his death? A. He was.

"Q. 6. Has Lucy A. Brown, the wife of Charles W. Brown, died since the commencement of this suit? A. Yes.

"Q. 7. Was Leonard, the conductor of the train on which Brown was killed, guilty of any negligence at the time? If so, state what act of negligence he was guilty of. A. Yes; in not holding train on down grade.

"Q. 8. Was brakeman McKisson guilty of any negligence at the time Brown was killed? If so, state of what negligence he was guilty. A. No.

"Q. 9. Was engineer Monden guilty of any negligence at the time Brown was killed? If so, state of what act of negligence he was guilty. A. Yes; in not holding his train on down grade, and nearing junction.

"Q. 10. Was fireman Chase guilty of any negligence at the time Brown was killed? If so, state of what act of negligence he was guilty. A. No.

"Q. 11. Was the wreck in which Brown was killed the proximate result of any act of negligence of the defendant? If so, state the act of negligence which was the cause of the wreck, and the name of the employe who committed such act of negligence. A. Yes; Leonard and Monden.

"Q. 12. Was brakeman Brown, at the time he was killed, either by himself or in connection with the other employes on the train, guilty of any act of negligence which caused the wreck? If so, state what such negligence was. A. No.

"Q. 13. Was Brown living with his wife and son at the time of his death? If not, state for about how long prior to his death he had not been living with them. A. No; about four or five years.

Q. 14. Was Brown supporting his wife and son at the time of his death? A. Do not know.

"Q. 15. Is it not a fact that Brown had not been supporting his wife and son for about four or five years before his death; or if he had not failed to support them for that length of time, state for about how long before his death he had not supported them? A. Do not know.

"Q. 16. Was not Brown's wife living with and being supported by other men for several years before his death? A. At times she was.

"Q. 17. Was not Brown's son, Charley, supporting himself by selling wienerwurst for a year or more before Brown was killed? A. Yes.

"Q. 18. How much, if anything, did Brown contribute to the support of his wife and son from the time they quit living on Dripp street, in Kansas City, until his death; and if any such contribution was made, when was it made? A. Do not know as to his wife; gave son a complete outfit, hat, clothes, shoes, socks, and shirts, and underwear, and $ 4 or $ 5 in money, about six or seven months before he was killed.

"Q. 19. Did not Brown abandon his wife and son when they were living on Dripp street, in Kansas City? A. No."

"Q. 21. Is it not true that at the time of Brown's death his life was worth nothing in money to his wife and son? A. No."

Upon a motion for a new trial, it was insisted that the verdict was against the evidence, that the damages allowed were grossly excessive, and that the special findings were inconsistent with each other, and were unsupported by the testimony, but the motion was overruled, the verdict approved, and judgment rendered against the company. Upon these rulings, errors are assigned.

There was no proof of negligence on the part of the railroad company. The only negligence found by the jury was that Leonard, the conductor, did not hold the train going down grade, and that the engineer, Monden, did not hold the train on down grade on nearing the junction. The only testimony upon which the negligence of Leonard and Monden could be based was the deposition of Leonard himself, and that of McKisson, who was a brakeman on the train; and there is absolutely no testimony tending to show any negligence on the part of Leonard. All the evidence in the case showing how the train was operated at the time of the accident, or by any possibility having any bearing upon the question of negligence, being by deposition, this court is as competent and has as much right to weigh it as the trial court. Durham v. C. C. & M. Co., 22 Kan. 232.

If the court shall decide that Monden was guilty of negligence, still the verdict ought to be set aside, because the jury have found that both Leonard and Monden were guilty of negligence, and they may have based their verdict upon the supposed negligence of Leonard, thinking that the negligence of Monden, if any there was, was slight; and it is possible that their general verdict would have been for the defendant if they had not supposed that Leonard was guilty of negligence. There being absolutely no negligence on the part of Leonard, the verdict ought not to be allowed to stand.

The general verdict is against the evidence, and is grossly excessive, and some of the special findings are against the evidence, and others are not supported by sufficient evidence.

Compensation should have been made to the son only for the actual loss sustained; and if the evidence did not show a loss, no compensation was due. See A. T. & S. F. Rld. Co. v. Brown, 26 Kan. 443; A. T. & S. F. Rld. Co. v. Weber, 33 id. 543; A. T. & S. F. Rld. Co. v. Brown, 33 Kan. 757.

This court has never hesitated to set aside a verdict when excessive. Beginning with Swartzel v. Dey, 3 Kan. 244, and coming down to the present we find an unbroken line of decisions on that point. See, also, Ladd v. Foster, 31 F. 827.

The answers to questions 7, 9, and 11, submitted to the jury by the plaintiff below, are directly upon the question of the negligence of the railroad company. The rule is held in this court that where a question of fact is submitted to a jury and there is competent evidence tending to establish such fact, the findings of the jury and the verdict thereon, when approved by the trial court, are conclusive. Gafford v. Hall, 39 Kan. 166; Cavender v. Fair, 40 id. 182; Juneau v. Stunkle, 40 id. 756.

The claim of plaintiff in error that the general verdict is against the evidence, and that the damages are grossly excessive, is based upon a narrow, illiberal and unfair interpretation of the evidence, and one which no fair-minded jury could adopt. The circumstances surrounding this family were such as to make it impossible to present to the jury anything like its full history; but we submit that enough appeared in evidence to enable them to form a reasonable estimate of the value of the life of Charles W. Brown and the loss which his son and only heir sustained in his death. These questions were peculiarly within the province of the jury, and while we recognize the right and power of the court to set aside a verdict as excessive in certain cases, such power should be exercised only when gross injustice is done by the verdict.

"A court cannot interfere with the verdict of a jury on the ground of excessive damages, unless the damages are so excessive as to lead to the conclusion that the same is the fruit of passion or prejudice. To warrant a conclusion of that kind the award of damages must be shocking to the sense of justice."

See Dugert v. Railroad Co., 52 F. 87; Treffert v. Railroad Co., 36 Ill.App. 93. See, also, Barry v. Edmunds, 116 U.S. 565.

There is no arbitrary rule for computing the value of life taken away. See K. P. Rly. Co. v. Cutter, 19 Kan. 83; I. C. Rld Co. v. Barron, 5 Wall. 90. The rule laid down in A. T. & S. F. Rld. Co. v. Brown, 26 Kan. 443, which is invoked by plaintiff in error, is not applicable to this case. In fact, this court, in that case, distinguishes between that case and this. We believe the true rule which governs the jury in such cases is laid down by the New York courts in the following...