55 Kan. 667 | Kan. | 1895
The opinion of the court was delivered by
It is contended that the amount awarded by the jury is not warranted by the testimony, and that it is so excessive as to betray passion and prejudice on the part of the jury. That Mary Stewart fell while leaving the train, and that it resulted in some injury to her must be conceded, but the cause of the accident and the extent of the injury are matters of dispute. Her theory is that the train did not stop at the station of Douglass a sufficient time to allow the passengers to alight from the cars, and that the train started while she was on the lower step of the car, attempting to step to the depot platform, and that she was thereby thrown between the cars
A reading of the testimony satisfies us that it is sufficient to sustain the finding of the jury that the company, was negligent in starting the train while she 'was endeavoring to alight, and also sufficent to sustain the award of actual damages. ' The amount of the award is quite large, but the testimony offered in behalf of the plaintiff below tends to show that the injury occasioned by the fall was severe, that it resulted in blood passing from her and in sinking spells, and that she has suffered pain ever since the time of the injury, and was unable by reason of her suffering to perform labor or obtain rest and sleep. Considerable testimony was produced in behalf of the company to the effect that she was not interrupted in her regular employment, and that she did not thereafter show evidences of pain or suffering. The conflict, however, has been determined by the jury, and we are unable to say that the sum of $2,000 allowed by the jury is so excessive as to require a reversal.
The items of $500 as exemplary damages and $150 as attorney’s fees which were awarded by the jury cannot be allowed to stand. The allowance of an attorney’s fee, in addition to one for exemplary damages, is conceded to be erroneous, and we find nothing in the testimony which justifies an award in any amount as exemplary damages. Nothing in the conduct of the employees in charge of the train indicates malice or oppression, or any wanton, -willful and deliberate disregard of the rights of the plaintiff below.
We do not regard the rulings upon the testimony to haye been prejudicial, nor do we deem the objections raised upon the special questions to be material. The jury, in answer to questions concerning the age of the plaintiff and the compensation she was able to earn, stated “We do n’t know.” The testimony upon these questions was somewhat confused and uncertain, and hence the jury may not haye felt able to giye satisfactory answers. We do not think, however, that the questions are very material, nor that any error was committed by the refusal to compel the jury to answer them. We find no other matters in the record which require discussion.
The cause will be remanded, with directions to the district court to disallow and strike out the items for exemplary damages and attorney’s fees, and when the judgment is so modified it will stand affirmed. The costs of this court will be divided between the parties.
