16 Kan. 200 | Kan. | 1876
The opinion of the court was delivered by
This was an action by defendant in error to recover damages for property consumed by fire, claimed to have been started from one of the engines of the railroad company. The fire was the same as that which destroyed the property of ¥m. M. Stanford, a judgment in whose favor therefor was in 1874 sustained by this court. (A. T. & S. F. Rld. Co. v. Stanford, 12 Kas. 354.) There are also three other actions now pending in this court to recover damages done by the same fire, or fires from the same engine upon the same day. Of course, as to all questions then decided, nothing need now be said. Many of the questions in that case do not arise in this; and some additional matters are here presented.
And the first question we shall examine is, as to whether the verdict is contrary to the evidence. And here the only matter of difficulty is as to negligence on the part of the company. The evidence thereon, may be briefly ■ stated as follows: There is the testimony of some fifteen witnesses who saw the train drawn by the engine No. 9 passing from Emporia westward, and immediately after it passed along saw fires starting in the prairie grass beside the track. The exact number of fires started, as seen by the witnesses, does not
The suggestions already made are decisive of the second question we shall consider. In addition to the general verdict certain questions were presented to the jury, and they were instructed to answer them. Six questions were thus presented by the plaintiff, and thirty by the defendant. The six were fully and specifically answered, while some six or seven of the thirty received only the answer, “ Don’t know.” The following are the questions thus answered:
“5th., Was said engine No. 9 in good repair on October*207 12th 1871, and provided with all the most approved appliances then in use for preventing injuries, by the escape of fire and sparks therefrom, to property or combustible material upon or adjacent to the line of the railroad?” Answer— “Don’t know.”
“6th. If engine No. 9 was not in good repair on October 12th 1871, and was not provided with such appliances'mentioned in question No. 5, wherein was said engine out of repair, or defective, or wanting as to such appliances?” Answer — “Don’t know.”
“24th. If the fire was started from engine No. 9, how was it so started? by sparks from the stack, or in some other way?” Answer-1 Don’t know.”
“25th. If by other means than sparks, what?” Answer— “Don’t know.”
“26th. If the engineer of No. 9 reduced the speed of his train to about 10 miles per hour, ran with a slow or dead fire, and with one of the dampers shut and closed all day on October 12th 1871, were these precautions all that careful management required him to take?” Answer-“]Ao.”
“27th. If no, what other precaution should he have taken?” Answer — “Don’t know.”
“29th. Was engine No. 9 properly and carefully managed at the time of passing the place of fire, on October 12th 1871?” Answer-1 No.”
“30th. If no, in what particular?” Answer-11 Don’t know.”
Now, if a jury may properly find negligence on the part of the company, without being able to specify in what particular the negligence consisted, it follows that the only answer which sometimes they can give to a question as to negligence in a particular matter is, that they do not know. And the fact that testimony has been received as to that particular matter may not affect the propriety of the answer. In this very case, we think the jury might properly say that they were satisfied that this injury resulted from negligence, and still, after hearing defendant’s witnesses in reference to the condition of the engine, and conduct of the engineer, be unable to decide whether the fault was with the engine, or the engineer. True, all the direct testimony points to an engine in good order, and suitably supplied; but the jury are not limited to this direct testimony, and upon it bound to
In reference to the instructions, we deem it unnecessary to notice them in detail. The court presented its views of the law in a charge of its own preparation, and refused to give any of the instructions asked by either side. In this charge we think the law is correctly stated, and with sufficient fullness and detail. Upon the whole case we see no error justifying a reversal, and the judgment must be affirmed.
An examination of the records in the cases of the same plaintiff in error against Joseph Rickabaugh, and against Stephen Shaw, shows that they are so nearly like the case at bar that no separate opinion is required for them, and they also will be affirmed.