25 Kan. 236 | Kan. | 1881
Thomas Gibson, plaintiff’s intestate, fell off an embankment in one of the streets of the city of Wyan-dotte, and received injuries from which he died. Thereafter this action was brought. A judgment in favor of the city was reversed by this court. (20 Kas. 156.) After a change of venue to Leavenworth county, upon a trial, plaintiff recovered judgment; and to reverse that judgment this proceeding in error has been brought. The general facts are, that the city, in grading Fourth street south from Minnesota avenue, made a cut in front of the residence of James A. Cruise of about forty feet in width and from twelve to fifteen feet in depth. As the street was eighty feet in width, there was a space of about twenty feet between the front fence around Mr. Cruise’s •lots and the edge of the embankment. Along this edge, no railing, light or other guard against accident was placed. On the evening of the injury, Mr. Gibson went to the house of Mr. Cruise to pay him some money. After transacting this business, he started home, and, the night being very dark, fell off the embankment and received the injuries.
Now the negligence imputed to the city was not in the manner in which the grading was done, or in grading only half the width of the street, for the work was properly done, and the width of the cut was a matter for the) council to determine, but in leaving such an embankment in the street without railing, light, or other guard against such accidents as that which befell plaintiff’s intestate. Indeed, the same question of negligence would arise if the embankment had been a natural one instead of being caused by the city’s grading, though there might, perhaps, be a greater necessity for erecting barriers in the one case than in the other. Whether this omission was negligence, depends on many things: the proximity to the business portion of the city; the amount of travel over the street; the depth of the cut; and, indeed, every other fact bearing upon the question of the probability of the occurrence of just such an accident as did in fact happen.
We pass now to the consideration of certain specific errors alleged by the learned counsel for the city. And first, the testimony of Mrs. Boscow, the daughter of plaintiff, is challenged, in so far as she spoke of conversations with the deceased. We agree with counsel, that such testimony was improper; but the questions to which such testimony was returned in answer,' were proper. The court ruled correctly in .overruling the objection to them. And if the answer was not responsive — or, being responsive, contained matters of which the witness might not speak — the remedy was, by mo
The next objections are to the failure to give certain instructions. The court put aside all the instructions asked by the parties, and prepared the entire charge to the jury. If in this charge it covered the entire ground, and instructed the jury upon all matters necessary for their determination, and instructed them correctly, this is sufficient. It is not essential that the exact language of counsel be adopted. Now an examination of the charge shows that the court placed the questions before the jury in language most clear and appropriate. Eliminating all superfluous matters, it stated the two vital questions, and the law applicable to them, in language so clear and apt that no one could have been mistaken. Counsel urges that no definition of ordinary care and ordinary negligence was given. That may be technically correct; and yet the court in placing before the jury the duties and rights of the respective parties, so stated them that no one could mistake as to the scope and import of the legal phrases “ ordinary care” and “ordinary negligence.”
We pass to the final matter; and it is the only one that has given us any real trouble. Several questions were submitted to the jury. Besides the general verdict, they answered many of those questions, but some they failed to answer. Nevertheless the court, over the objections of defendant, received the verdict and the answers returned without insisting upon answers to the questions not answered. Now that a party has a right to. have specific questions submitted and answered, has been repeatedly affirmed. (Bent v. Philbrick, 16 Kas. 190; Morrow v. Comm’rs Saline County, 21 Kas. 484; L. L. & G. Rld. Co. v. Rice, 10 Kas. 426.) But this right is not one which enables him to determine what are material facts, and what questions must be answered. He may present any number of questions for submission, as any number of instructions, but it is the duty of the court to determine what in the one
“8. Did the deceased, Thomas Gibson, upon the night he is alleged to have fallen into said exacavation on said Fourth street, take any precaution whatever, or exercise ordinary care and prudence to guard against an accident at that point?
“ 9. What precaution did he take to guard against an accident at said locality in said Fourth street?
“10. Was the deceased, Thomas Gibson, at the time he fell into said excavation on said Fourth street, exercising ordinary care and prudence?
“11. Could the deceased, Thomas Gibson, by the exercise of ordinary care and prudence, have prevented said falling into said excavation on said Fourth street, upon the night of November 30, 1872, from happening?”
Now these run directly to the matter of contributory negligence. They touch upon a substantial matter of defense; and they are not conditional, or based upon prior interrogatories; and they ought to have been answered. It was error
“12. Would said deceased, Thomas Gibson, have fallen into said excavation had it not been for his own lack of ordinary care and prudence? Answer: Yes.”
Putting these facts together, it would seem to be resting too much upon the mere form of proceedings to send the case back for a new trial. There can be no doubt as to the understanding of the jury upon these matters. They directly say that he had no knowledge of the excavation; and they impliedly say that he was guilty of no imprudence which contributed to the injury. Their general verdict is sustained by all the facts they found, and nothing appears beyond the facts found which in any manner makes against such verdict.
There is no other matter presented which has not already been passed upon by this court in prior cases. The judgment will therefore be affirmed.