100 P. 1134 | Kan. | 1909
The fifth instruction was qualified by the eleventh, so that the kind of appliances necessary to acquit the defendant of fault was clear enough. The jury were not misled, because they did not rest upon the fact that the spark-arrester failed to prevent the escape of fire as the most approved kind might have done. They found that this spark-arrester would not keep the engine from continually throwing fire when going up a slight grade like the one where the fire started. The defendant itself took up the allegation in the petition respecting the existence of combustible material near the track and interrogated the jury respecting it. The jury were not given a roving commission to hold the defendant to any kind of want of,care; but if the instructions were not as specific as they might have been the special findings are perfectly clean cut, definite and precise, and warrant the verdict on at least two grounds, either one of which is sufficient. In view of the findings no prejudice was suffered because negligence was not defined. The findings are amply sustained by the evidence. The plaintiff had the right to prove damages according to the facts. If the facts should not warrant recovery by one rule he was entitled to the benefit of the other, and the court was right in so instructing the jury. The findings show the damages were properly assessed.
The judgment of the district court is affirmed.
