87 P. 749 | Kan. | 1906
The opinion of the court was delivered by
The only negligence of which the jury found the company guilty was the failure to have a lookout on the, rear of the train to warn persons of its*"“ approach. It is urged that the findings and evidence conclusively establish that this negligence could not have been the proximate cause of the accident because it appears that the boy saw the cars approaching all the time and had sufficient warning. However, conceding that the railway company was negligent, the findings of fact clearly establish that plaintiff’s contribu- ^ tory negligence was such that he cannot recover.
■ Some of the findings of the jury are in a sense contradictory. In the first answer they find that plaintiff
The boy possessed the ordinary intelligence of one of his age, knowledge and experience. He was past thirteen years of age and for five weeks had been about and across these tracks daily. He attempted to run around in front of a moving train of cars which he saw approaching and about to cross his path unless it*' stopped, as he says he thought it was going to do. The train was moving five or six miles an hour. One of the reasons he gives that caused him to think the train would stop was that he saw it awhile before moving j/ eastward and stopping at a point west of there.
The jury found, as indeed they were bound to find from his evidence, that he understood he was liable to injury unless he avoided being struck by the train; that he noticed the cars when they were ten feet away from him but did not stop. The finding that he did not realize there was any danger is likewise a conclusion which must be controlled by the previous findings to the effect that he saw the train approaching but did not stop; that he did understand his liability to injury; and that he possessed the ordinary intelligence of one of his years, knowledge and experience. In A. T. & S. F. Rld. Co. v. Plunkett, Adm’r, 25 Kan. 188, it was said:
“The jury’s findings are always conclusions. They cannot be otherwise; and the jury cannot in any case, or in any sense, find ultimate facts. They can find the facts in great detail, or they can find them in very general or comprehensive terms. And where they find*573 the facts both in detail and in general terms, we may disregard the general findings. If the findings in detail contradict the general findings, we may order the judgment to be rendered in accordance with the findings in detail, and wholly ignore the general findings. For instance: Where a question of negligence arises in a case, the jury cannot be allowed to say conclusively, after finding certain special facts, that these facts constitute negligence, when in fact and manifestly they do not constitute negligence.” (Page 197.)
To the same effect see C. B. U. P. Rld. Co. v. Henigh, Adm’r, 23 Kan. 347, 359, 33 Am. Rep. 167; A. T. & S. F. Rld. Co. v. Brown, 2 Kan. App. 604, 42 Pac. 588; 2 Am. & Eng. Rld. Cas., n. s., 113; A. T. & S. F. Rld. Co. v. Plaskett, 47 Kan. 112, 115, 27 Pac. 824.
The finding in this case that under the circumstances the boy exercised such reasonable care and prudence as might be expected from one of his years, knowledge and experience is necessarily a general conclusion from the special facts found, and is contradicted by the findings in detail. From these it stands out clear that it would have required the exercise of only a slight degree of care on the part of this boy to have protected him from injury, and that in the face of danger which he sufficiently appreciated he culpably neglected to use the knowledge and capacity which he-possessed.
“Although a minor, he was bound to use the reason he possessed and to exercise the degree of care of which he was capable.” (Wilson v. Railway Co., 66 Kan. 183, 186, 71 Pac. 282. See, also, A. T. & S. F. Rld. Co. v. Todd, 54 Kan. 551, 38 Pac. 804; Bess v. Railway Co., 62 Kan. 299, 62 Pac. 996; Mendenhall v. Railway Co., 66 Kan. 438, 71 Pac. 846, 61 L. R. A. 120, 97 Am. St. Rep. 380.)
It follows, therefore, that the motion for judgment in favor of defendant upon the special findings should have been sustained.
The judgment is reversed, with directions to enter judgment for defendant.
