71 P. 831 | Kan. | 1903
The opinion of the court was delivered by
The defendant in error, being in haste to board the train of plaintiff in error, standing at the depot at Clyde, left his ticket, which he had purchased to Pueblo, lying at the ticket window. This was about eleven o’clock p. m., August 28, 1900. After the train started, he informed the conductor of the fact, and suggested that he be permitted to ride to Belleville, where, if nothing was heard from the agent at Clyde relative to the ticket, he would pay his fare from Clyde to Belleville and discontinue his journey. This the conductor declined to do, and a short distance out of Clyde stopped the train and required the defendant in error to get off. The defendant in error claims that the train did not come to a standstill, but that it simply slowed down, and he was ordered by the conductor to jump off; that upon his hesitating to do so the conductor shoved him off, and he was struck in the side by the moving train and otherwise injured on the head and shoulders. By these injuries he was in bed and detained from his
The first claimed error arises upon the action of the court in overruling the motion of the railway company for judgment on the pleadings. The answer contained a general denial and also pleaded contributory negligence on the part of the defendant in error. No reply was filed. The court’s attention was not called to the condition of the pleadings at any time prior to the presentation of the motion for anew trial. A motion for judgment on the pleadings was filed after the commencement of the trial, but no specific mention was made as to the grounds of the motion. At the time both parties were in court with their witnesses and prepared for trial and the jury fully impaneled. The case was tried as though the reply, denying the allegations of contributory negligence, had been filed. The fact that the court’s attention was not specifically called to the absence of a reply, and the further fact that the parties, tried the case as though a reply had been filed, renders the court’s error in overruling the motion, if error it was, unavailable. (Hopkins v. Cothran, 17 Kan. 173.)
It appears that on the cross-examination of the defendant in error he was asked about meeting the conductor the day before the trial, and testified that he
The last contention of error, and probably the only one of any considerable merit, is that arising upon the overruling of the motion for a new trial, and is based upon the claim that the jury was influenced by passion and prejudice in rendering the verdict. In support of this claim we are cited specially to finding No. 20, where the jury found that the plaintiff below did not request the conductor to stop the train and let him get off at the place where the injury occurred, and No. 28, where the jury said that they did not believe that the conductor was so requested by the plaintiff below. It is claimed that these answers were contrary to the evidence; that the testimony of the plaintiff below himself clearly shows that he did request the conductor to stop the train. It appears that the plaintiff, when he first got upon the train and discovered he had left his ticket, did request the conductor to stop and let him go back for it. In narrating the second occurrence, evidently not understanding the English language and methods of expression very well, he became somewhat confused as to the two occurrences, but upon the entire evidence
It is again claimed that the fact that the trial court required a remission of the verdict is proof that the jury in rendering it was influenced by passion and prejudice. One of the grounds for a new trial mentioned in the statute is : “Excessive damages, appearing to have been given under the influence of passion or prejudice.” It is not sufficient that the damages be excessive. It must appear from the entire case that the x’eason for such excessive damages is found in the passion or prejudice of the jury. We do not think it so appears in this case. Taking the plaintiff’s theory, as the jury did from all the evidence before it, a much larger amount of damages might have been properly rendered, had they been claimed in the petition, but plaintiff asked for only actual damages and not punitive or exemplaxy. The amount awarded, as before noted, was simply compensatory, and as the jury found in their special findings that the plaintiff had sustained no permanexit or lasting injuries, the judge, in passing upon the motion for a new trial, gave as his reason why a reduction of the amount of the verdict would be required that he did not believe the supreme court would uphold a verdict for so large an amount as mex’ely compensatory damages for the physical injuries received, no permanent disability being found. The judge further expressed his belief that the jux'y were fair and unprejudiced. The amount which he required to be remitted from the verdict was sixnply to make the judgment respond to his idea of what would be a fair compensation to the plaintiff for his loss of time and physical injuries.
Finding no error in the record, we direct affirmance of the judgment below.