68 P. 612 | Kan. | 1902
The opinion of the court was delivered by
This was an action brought by defendant in error against plaintiff in error in the district court of Greenwood county to recover damages alleged to have been sustained by reason of fire escaping from a locomotive-engine of defendant while operating its line of railroad in the vicinity of his premises. The specific acts of negligence charged are that the company negligently failed to provide its engine with the latest and best improved spark-arrester, and with a proper fire-box and smoke-stack; and so negligently and unskilfully operated its engine as to permit fire to escape and ignite the grass on plaintiff's premises, adjoining its right of way.
At the close of the evidence, the court, at the request of the defendant, submitted to the jury the following, among other special questions, which were answered as follows :
“1. Ques. How was this fire.set out ? Ans. Bya locomo tive-engine. ’ ’
“6. Q. If the fire was set out by fire escaping from the defendant’s locomotive-engine, was such engine provided with proper and approved appliances to prevent the escape and setting out of fire? A. Don’t know.”
“8. Q. If the fire was set out by fire escaping from defendant’s locomotive-engine, was such engine provided with a proper and improved smoke-stack and fire-box? A. Don’t know.”
“10. Q. If the fire was set out by fire escaping*753 from the defendant’s locomotive-engine, was such engine provided with all of the latest improved attachments to prevent the escape of fire and sparks therefrom? A. Don’t know.”
”12. Q,. If the fire was set out by fire escaping from the defendant’s locomotive-engine, was such engine properly and carefully operated at the time of the escape of the fire ? A. Don’t know.”
The jury returned a general verdict for the plaintiff. Thereupon the defendant moved the court to require the jury to retire to its jury-room and make more specific and definite answers to the above questions. This was refused by the court, to which the defendant excepted.
The only error complained of by plaintiff in error is-that the court refused to resubmit these special questions to the jury and require it to make answers thereto. Section 286 of the code (Gen. Stat. 1901, §4733) provides:
“The court shall in any case, at the request of the parties thereto or either of them, in addition to the general verdict, direct the jury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same.”
Under this statute, it is the right of a party to have special questions submitted. (A. T. & S. F. Rld. Co. v. Ayres, 56 Kan. 176, 42 Pac. 722; L. & W. Rly. Co. v. Crum, 39 id. 642, 18 Pac. 944.)
When special questions are submitted to a jury it may not ignore or refuse to answer them. A court should never submit special questions that are intended! or are liable to confuse or entrap the jury into making-mistakes, but, when submitted, it is the duty of the court to require direct answers to all such questions as are material and on which evidence has been offered. There was evidence in this case tending to establish the fact that the engine was properly equipped
It is contended on the part of defendant in error that the answers “don’t know” are equivalent to answering in the negative, and counsel refer us to Morrow v. County of Saline, 21 Kan. 484 ; U. P. Rly. Co. v. Shannon, 38 id. 476, 16 Pac. 836. In the former case the plaintiff in error had not requested the court to require the jury to make- more definite answers to the questions. Mr. Justice Brewer, speaking of the effect to be given to such answers, when no objection had been made and no request to make them more definite, said:
“Here, however, the parties were content to abide by these answers ; and each party, when invited by the .court, declined to ask for further or more specific answers. Now, what construction is to be placed upon such answers ? They imply a denial of the existence, or perhaps more correctly of proof of the existence, of the facts concerning which the questions were propounded.” (Page 504.)
The latter case, while quoting the former as an authority, states that, because of other facts found in the case, the answers to the special questions of which complaint was made were immaterial.
We are of the opinion that the questions submitted to the jury were material and within the issues and should have been answered. For a refusal on the part of the court to have such questions answered, the judgment of the court below is reversed and the cause remanded.