1 Kan. App. 374 | Kan. Ct. App. | 1895
The opinion of the court was delivered by
The first error complained of is the overruling of the motion of the railroad company for a continuance of the case from 4: 30 p. m. until the convening of the court the next morning, to enable the defendant below to procure the evidence of W. W." Hopkins, who resided in the county within eight miles of where the court was being held. The affidavit of the attorney for the railroad company sets out fully all the facts in relation to the efforts made to procure the presence of the witness and the materiality of his tes
The second error complained of in the brief of counsel for the plaintiff in error is that the judgment was rendered for O’Melia when, under the evidence and the law, the verdict and judgment should have been for the railroad company. We have examined the evidence in this case very carefully, and are unable to say, as a matter of law under all the evidence, that the court should have directed the jury to return a verdict in favor of the railroad company. There is great conflict in the evidence,- which it is unnecessary for us to point out or discuss in this opinion, but it was a question of fact as to whether the railroad company was liable for the injury sustained by O’Melia.
The third error complained of by the plaintiff in error is in the instructions given by the court -to the jury. The charge of the court is quite full, and contains 19 separate paragraphs. The particular instructions claimed to be erroneous are fo'und in the third, fourth, eighth and thirteenth paragraphs. It is insisted by counsel that these instructions lay down the doctrine of comparative negligence, and ignore entirely the rule of contributory negligence. The writer of this opinion is disposed to agree with counsel for the plaintiff in error, and is of the opinion that these instructions are on the border-line of comparative negligence, and that they seem to ignore the rule of contributory negligence. The doctrine of comparative negligence has been repudiated by the supreme court of this state. (K. P. Rly. Co. v. Peavey, 29 Kas. 180; Howard v. K. C. Ft. S. & G. Rld. Co., 41 id. 408 ; A. T. & S. F. Rld. Co. v. Morgan, 31 id. 77.)
Beach, in his work on Contributory Negligence, § 26, says :
“The doctrine of comparative negligence, being so entirely at variance with the accepted rule of law concerning contributory negligence, has very naturally provoked much sharp criticism, and the courts of other states repudiate it with emphasis.”
In the case of O’Keffe v. C. R. I. & P. Rly. Co., 32 Iowa, 467, Cole, J., delivering the opinion of the court, says :
! ‘ The well-established law of this state is that in an action to recover damages for the negligent act of the defendant, the plaintiff will not be* entitled*386 to recover if his own negligence contributed directly to the injury. In other words, this court recognizes and applies the doctrine of contributory" negligence and not the doctrine of comparative negligence. The latter doctrine obtains only .in Illinois and Georgia;, while the former obtains in the other states.”
In the case of Railway Co. v. Jones, 95 U. S., 442, Mr. Justice Swayne, delivering the opinion of the court, says;
' ‘ One who by his own negligence has brought the injury upon himself cannot recover damages.for it. Such is the rule of the civil and common law. The plaintiff in such cases is entitled to no relief; but where the defendant has been guilty of negligence also in the same connection, the result depends upon the facts. The question in such case is, (1) whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or, (2) whether the plaintiff himself so far contributed to the misfortune, by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened.”
We are met in this case with the approval of these instructions by the supreme court in the case of the A. T. & 8. F. Rld. Co. v. Hughes,
“It is next insisted that the court erred in its instructions to the jury by requiring the application of the rule of comparative negligence, in its instruction in regard to gross negligence, and in other respects in ‘the giving and refusing of instructions. The court in its charge stated the rules which govern where there is Inutual or concurring negligence. It also recognized different degrees of negligence, and, in doing so, to some extent seemed to place the gross negligence of the company against the slight negligence of the deceased. Evidently the trial court had in mind some of the decisions of this court where it is held that a slight inattention to duty, which is not the proximate cause of the injury, does not bar a recovery for injury resulting from the negligence of another. Although some of the language employed was objectionable, it is clear that the court did not indorse the doctrine of comparative negligence, nor give the jury to understand that if Hughes was guilty of ordinary negligence contributing to his death, there might be a. recovery, because the company was guilty of greater-negligence. The passenger is required to exercise ordinary care, and his failure to exercise the highest or extraordinary care will not preclude a recovery for an injury caused'by the gross or ordinary negligence of*388 the railroad company. It is conceded that extraordinary care is not required of a plaintiff who brings an action of negligence, and that slight negligence on his part will not defeat a recovery. In the case of Railway Co. v. Peavey, 29 Kas. 180, cited by plaintiff in error, it is said that ‘ It is settled in this state that a party may recover for injuries done to him or his property caused by the negligence of another, even if his negligence is slight/ While this view was adopted and degrees of negligence were recognized, at the same time the court plainly instructed the jury, and kept it before them throughout the charge, that if Hughes failed to exercise ordinary care and prudence in jumping from or leaving the train, there could be no recovery for his death. Taking all the instructions together, we think the jury was not misled by the language of the court which is complained of, and that, under the decisions, it cannot be held that prejudicial error was committed in charging the jury as to the care required of the company and of the deceased. (Railway Co. v. Rollins, 5 Kas. 167 ; Sawyer v. Sauer, 10 id. 466 ; Railway Co. v. Pointer, 14 id. 37; Railway Co. v. Young, 19 id. 488 ; Railway Co. v. Richardson, 25 id. 391 ; Railway Co. v. Peavey, 29 id. 180 ; Railway Co. v. Henry, id. 565 ; 14 Pac. Rep. 1.) The testimony which was introduced warranted the court in stating the rule of gross negligence to the jury, and, after an examination of the entire charge, we are satisfied that the remaining objections to the rulings upon the instructions given and refused are not substantial, nor can error be predicated on them.”
Plaintiff in error insists that, under the special findings 'of fact of the jury, it appears that there was no negligence on the part of the railroad company and its employees in chargé of the train. Substantially the same findings of fact were made in the Hughes Case, just referred to, and the supreme court sustained the judgment of the district court over these objections. The court, in relation to the special findings, says : “ Some objections are made to the answer given
See 40 Pac. Rep. 919.