Clark v. Missouri Pacific Railway Co.
35 Kan. 350
| Kan. | 1886

.The opinion of the court was delivered by

Valentine, J.;

This was an action brought by James B. Clark against the Missouri Pacific Railway Company, to recover for injuries alleged to have been caused through the negligence of the: railway company. The case was tried before the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant, and assessed *353the plaintiff’s damages at one dollar; and also made a large number of special findings, upon which special findings the court rendered judgment in favor of the defendant and against the plaintiff for costs, notwithstanding the general verdict. Of this judgment the plaintiff complains, and brings the case to this court for review.

It appears that on April 15, 1882, at about 6 o’clock in the afternoon, while the plaintiff was crossing the defendant’s railway track, going northward on Locust street, in the city of Paola, Kausas, the hind end of his wagon was struck by one of the defendant’s engines, which was attached to and was drawing a westward-bound railway freight train, and that this collision caused the injuries complained of.

There are two principal questions involved in this case:. First, was the defendant guilty of any negligence causing the injuries complained of? Second, was the plaintiff guilty of any contributory negligence? Both of these questions we think have already been virtually decided by this court in the cases of Mo. Pac. Rly. Co. v. Pierce, 33 Kas. 61; and U. P. Rly. Co. v. Adams, 33 id. 427.

1. Railroad ^•e to sóunl— gence ^wlaeñ The only negligence charged against the railway company in this case is, that it failed to sound the engine whistle three times, at least eighty rods east of a certain point where the railway crosses a public road or street at the east edge of the city of Paola, and claimed to be outside of the city limits. The statute does not require that the whistle shall be sounded in a city or village. (Comp. Laws of 1879, ch. 23, §60.) But it is claimed that the whistle should have been sounded at least eighty rods east of this road or street, for the reason that it was not within the city limits. This road or street was about four hundred and seventy-three feet east of Locust street and of the place where the accident occurred. Now, assuming that the aforesaid road or street was not in the . aüC* ^at the whistle was not sounded at least eighty rods east thereof, still these facts, if they are facts, do not necessarily show negligence on the part of the defendant affecting this case. This exact ques*354tion has already been decided by this court, in the case of Mo. Pac. Rly. Co. v. Pierce, first above referred to. The accident in that case happened at the very same place where the accident in this case happened, and in that case it was held as follows:

“ The failure of a railroad company to sound the locomotive whistle three times, at least eighty rods from the point where the railroad crosses any public road or street which lies outside of a city or village, is negligence; but such negligence is not attributable to the railway company in a case where the injury complained of was done at a street-crossing within the limits of a city.”

Also,'in that case, the following language was used in the opinion of the court:

“ The purpose of the legislature in requiring this warning to be given before reaching a highway, is manifestly to afford protection to persons or property that may be upon, or passing over such highway, and therefore the omission of the company to comply with this statutory requirement cannot be held to be negligence as to any injury done except at the crossing of the particular highway for which the whistle is required to be sounded. The company owed no duty under this statute to parties crossing Locust street, within the limits of Paola, which is a city of the second class.”

We also think that the questions whether, under the facts of this case, the plaintiff was guilty of contributory negligence, and whether such negligence will bar a recovery, have been virtually decided by the case of the U. P. Rly. Co. v. Adams, 33 Kas. 427. In that case it was held as follows:

“Where an action is brought to recover for personal injury, and the plaintiff's testimony shows that his own negligence contributed directly to the injury, he has failed to make out a prima facie right of recovery, and a demurrer interposed to his evidence should be sustained.
“It is the duty of a person about to cross a railroad track, to make a vigilant use of his senses as far as there is an opportunity, in order to ascertain whether there is a present danger in crossing. A failure to listen, or look, when by taking this precaution the injury might have been avoided, is negligence that will bar a recovery, notwithstanding the negligence of the railroad company in failing to give signals, contributed to the injury.”

*3552' son*”crossing track. The plaintiff was well acquainted with the crossing of Locust street by the railway track. He had lived in that county and near that place for twenty-five years. He had crossed the railway track at that place a great many times, crossing sometimes as often as six times a day. Also, there < J t 7 was a sign put up at that crossing, in plain view, with letters on it saying: “ Look out for the cars.” He, at the time of the accident, was going north. The train which did the injury was coming from the east. The plaintiff, at one time, when he was at a great distance from the railway track, looked toward the east and. toward the railway track, but he did not look toward the east nor toward the railway track at any time after he arrived within 200 feet of the track. During the time while he was approaching the railway track he was looking toward the west. We think the case above cited settles the question that the plaintiff in this case was guilty of contributory negligence, and that he cannot recover.

3. Questions discussed. Of course, presumptively, the general verdict of the jury is a finding of everything in favor of the plaintiff and everything against the defendant; but we know from the special findings of the jury that such was not the intention. We would presume from the general verdict alone, that the jury intended to find that the defendant was guilty of negligence; but from the special findings we know that they did not so intend. Specific questions were put to the jury for the purpose of ascertaining whether the defendant was guilty of negligence, or not, and the jury answered in substance that they could not answer; which was in effect an answer that there was no sufficient evidence introduced to prove negligence on the part of the defendant. And this answer is true. There was no such evidence introduced. It is true there was some evidence introduced on the trial tending to show, and the jury found, that no whistle was sounded eighty rods east of a certain highway claimed to be outside of the city limits; but this evidence and finding merely tended to show negligence on the part of the defendant as toward persons traveling on that highway, and not negligence as to*356ward persons traveling on Locust street, in the city of Paola, where this accident occurred. Besides, this finding that the whistle was not sounded, was against the preponderance of the evidence. But taking this finding as it is, still the entire evidence tended to prove and the special findings show that the defendant was not guilty of any negligence as toward the plaintiff in this case. Also, from the general verdict alone, we would presume that the plaintiff was not guilty of any contributory negligence; but the evidence and the special findings of the jury show that he was; hence the special findings and the general verdict are inconsistent with each other, and the special findings must govern. (Civil Code, § 287.) Also, we think the special findings in this respect are sustained by the uncontradicted evidence.

The plaintiff in error also complains that the jury were not required to answer all the special questions of fact presented to them. Now we would think that the court below should have urged the jury more strongly than it did to answer properly all these questions; but still, we cannot say that any material error was committed in this respect as against the plaintiff. The jury failed to answer only four of the questions presented to them at the request of the plaintiff, and upon two of these at least the findings should have been against the plaintiff, and not in his favor; and the other two, under the circumstances of this case, were immaterial. Besides, the court sent the j ury out a second time to make findings upon all the questions presented to them. But here the court may have committed a slight error in stating to the jury at that time, among other things, “that if there was any question they could not fairly answer, they might so state.” But whatever error the court may have committed in this respect, we do not think that it could have materially prejudiced any of the rights of the plaintiff. It was rather an error against the defendant than against the plaintiff.

We do not think that any material error was committed against the plaintiff, and therefore the judgment of the court below will be affirmed.

All the Justices concurring.