56 Kan. 222 | Kan. | 1895
: William M. Wells was a brakeman who had been in the service of the Atchison, Topeka & Santa Fe Railroad Company for about 18 months prior to April 15, 1890, part of the time on passenger-trains, but most of the time on freight-trains: He had been at work with the conductor and crew with whom he was associated on the date named for about three months before that time. About 10 o’clock on the night of April 15, 1890, the conductor and his crew took charge of a freight-train at Emporia and started with it for Nickerson, Wells going with them and acting as rear brakeman on the train. The train consisted of about 30 empty freight-cars, a stock-car, a fiat car loaded with telegraph-poles, and this was followed by the caboose. The telegraph-poles on the flat car. were negligently loaded, and projected over the end of the flat car, so that one of them reached within four inches of the stock-car in front of it. The bottom of the flat car was from 3 feet and 10 inches to 4 feet above the ground, and the projecting poles were about two feet above the bottom of the car. No stop -was made by the train until it reached Strong City, but there was no switching done there, nor does it appear that the attention of Wells was drawn to the car loaded with telegraph-poles. The next stop was made at Florence, where they arrived after midnight. There the train was uncoupled from the front end of the flat car by Wells, and about 10 minutes later the train was backed up toward the caboose and flat car, and Wells was directed by the conductor to make a coupling. Following the direction of the conductor, he went in, leaned over, and attempted to make the coupling, and, as he retired and raised up,
“ It is apparent that the findings have been given under the influence of passion or prejudice, or, at least, that the jury have not intelligently or fully considered all the evidence. If material findings are made by the jury against the evidence, to sustain the general verdict, a fair trial has not been had. In such a case the facts should be submitted to another jury.” (S. K. Rly. Co. v. Michaels, 49 Kan. 396.)
Objections were made to the reception and exclusion of testimony during the trial, but, after an examination of all the testimony in the record, we cannot say that prejudical error was committed by these rulings.
For the errors mentioned, however, the judgment