Chicago, Rock Island & Pacific Railway Co. v. Brandon

95 P. 573 | Kan. | 1908

The opinion of the court was delivered by

Benson, J.:

There was no error in refusing to direct a verdict for the defendant. The plaintiff having shown the derailment of the train in which he was riding as a passenger, and injuries resulting to himself therefrom, made a prima facie case, and the burden was thrown upon the defendant to show that the injuries did not result from a want of care on its part. (S. K. Rly. Co. v. Walsh, 45 Kan. 653, 26 Pac. 45; A. T. & S. F. Rld. Co. v. Elder, 57 Kan. 312, 46 Pac. 310; Railroad Co. v. Burrows, 62 Kan. 89, 61 Pac. 439.) Whether this prima facie case was overcome by the evidence was a question for the jury and not for the court. (Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68.)

It is argued that the jury did not find the negligence as alleged in the petition, and that .in the absence of such finding the judgment should have been for the defendant. It was alleged, in substance, that the company allowed the spikes to become loose in the ties and for that reason the rails were not held firmly in place, and failed to employ the best known methods of keeping its track in safe condition, thus causing the train to leave the track. The jury found that the company was negligent in not using the proper material for ties, that the spikes were loose, and that by using soft-wood ties, not sufficient to hold the spikes, it failed to use the best methods of keeping its track and road-bed in a safe and proper condition. The findings sustained the allegations of negligence charged in the petition. It is argued that, as there was no averment of negligence in using soft-wood ties, the finding in- reference thereto was not within the issue. It was not the use of soft-wood ties that the jury found to be unsafe, but the use of softwood ties “which were not sufficient to hold the spikes,” and it was found that the spikes so driven into ties not sufficient to hold them were loose.

It is also urged that these findings are not sustained by the evidence. Something caused the displacement of the rail. The track was straight, the train was. moving at an ordinary rate of speed, and the wheels were shown to be in good condition. Only six days before the track had spread at the same place. The displaced rails had been restored to their proper position, and spiked down again upon the same ties. After this derailment the rails were found again forced out, and the spikes bent or forced down into the wood, thus permitting the rail to be pushed out and the track to spread. The jury found, in effect, that the rails were displaced because the spikes were loose, and that they were loose because the ties were insufficient to hold them. The fact that the same thing occurred shortly before at the same place was a circumstance to be considered jvith the other facts proved (3 Thomp. Com. Law of Neg. § 2814) ; the deductions and inferences therefrom were for the jury. Their findings are not shown to be unreasonable or inconsistent.

The defendant presented two questions which the court refused to submit to the jury. One was: “State in what particular the spikes were loose.” That the spikes were loose is itself a particular, i. e., an item or detail of the condition of the track. Not only was this defect stated, but also its cause. What more minute detail was desired was not suggested in the question. The other question asked the jury to state the condition of the track when the track-walker passed over it shortly before the derailment occurred. While the condition of the track forty minutes before the occurrence complained of was some evidence tending 'to show its condition at that time, the material fact was its condition at the time of the derailment. The court did not err in rejecting these questions. (Foster v. Turner, 31 Kan. 58, 1 Pac. 145; Mo. Pac. Rly. Co. v. Reynolds, 31 Kan. 132, 1 Pac. 150; Railroad Co. v. Aderhold, 58 Kan. 293, 49 Pac. 83; City of Weir v. Herbert, 6 Kan. App. 596, 51 Pac. 582.)

The defendant complains that too great a burden was imposed upon it by that clause of the instructions requiring the company to show that the accident could not have been prevented by the exercise of the utmost human sagacity and foresight. The degree of care required of carriers of passengers with respect to cars and equipment applies to the road-bed and tracks (3Thomp. Com. Law of Neg. §§ 2796, 2797; 4 Ell. Railroads, § 1586), and the rule so stated in the instructions was declared to be the established law of this state in Union Pacific R. Co. v. Hand, 7 Kan. 380, and has since been affirmed in Topeka City Rly. Co. v. Higgs, 38 Kan. 375, 16 Pac. 667, 5 Am. St. Rep. 754, Mo. Pac. Rly. Co. v. Johnson, 55 Kan. 344, 40 Pac. 641, S. K. Rly. Co. v. Walsh, 45 Kan. 653, 26 Pac. 45, A. T. & S. F. Rld. Co. v. Elder, 57 Kan. 312, 46 Pac. 310, and in Railroad Co. v. Burrows, 62 Kan. 89, 61 Pac. 439.

Complaint is also made of the sixth instruction, wherein it was stated to be the duty of the company “to use and employ the latest and best known methods of keeping its track in good condition, including ties of the best quality of material,” and, “if human sagacity would have suggested that by the use of ties of first-class quality such injury could have been avoided,” then the plaintiff might recover, if certain other facts were proved. It is said that the language quoted increased ■the duty of the company in an unwarranted manner; that to use the best quality of material that human sagacity would suggest would require a prohibitive expenditure. But the very fact that any particular material is so difficult to obtain and so expensive as to prohibit its use would also preclude its suggestion to the mind as being, required for such purpose. In Indianapolis, etc. R. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898, where the instruction held the company to the exercise of “the highest possible degree of care and diligence” (p. 295), it was said by Mr. Justice Swayne that these terms “do not mean all the care and diligence the human mind can conceive of, nor such as will render the transportation free from any possible peril, nor such as would drive the carrier from his business.” (Page 296.) The court approved the charge, saying: “The language used cannot mislead. It well expresses the rigorous requirement of the law, and ought not to be departed from.” (Page 297.) The courts have used varying terms in defining the duty of carriers of passengers in this respect, but there is a general consensus of the meaning which may be drawn by the average mind from the expressions used. In other instructions given the court stated that it was the duty of the company “in the construction of its railway and in keeping it in proper condition for the safe transportation of passengers to exercise the highest degree of care and skill practicable under the circumstances, . . . but when such care and skill have been exercised its duty to the public has been sufficiently discharged.”

Again, the court said:

“But if the cause of the accident was one which the highest degree of practicable skill, care and caution consistent with operating the road could not have provided against, then you should find for the defendant.”

This expression, “practicable skill, care and caution,” was repeated in another place in defining the duty of the company. The fifth instruction, which is not copied because of its length, expresses the views of the defendant in this respect, since it follows very closely its request, and clearly indicates that no merely fanciful, unreasonable or impracticable burden was intended to be put upon the company by the language objected to. Without approving all the expressions referred .to, we must hold that they were not misleading, and that when the instructions are properly considered as a whole, as they naturally must have been by the jury, they were not erroneous. (Hays v. Farwell, 53 Kan. 78, 35 Pac. 794; The State v. Atterberry, 59 Kan. 237, 52 Pac. 451.)

It is also urged that the amount of the recovery was excessive, and the district court so considered it, for a remittitur of $200 was required. The court may do this unless it appears that the excessive amount was allowed through passion or prejudice. (U. P. Rly. Co. v. Mitchell, 56 Kan. 324, 43 Pac. 244; Haldeman v. Johnson, 8 Kan. App. 473, 54 Pac. 507.)

The jury, in answer to special questions, found the amount of damages for certain particular injuries, but were not asked to specify further, and returned a gross sum. It is claimea- that the items appear in the memorandum that was found indorsed upon the findings, and that this shows the amount of the verdict to be excessive. We are not aware of any rule of practice by which we can treat this unsigned memorandum, not appearing to be in response to any question submitted, as a part of the verdict, in the absence of any action requested or taken thereon in the district court when the findings were returned.

The judgment is affirmed.