92 Kan. 132 | Kan. | 1914
The opinion of the court was delivered by
The appellee, Paul D. Cole, a minor, by his next friend, George W. Cole, brought this action against appellant, The Atchison, Topeka & Santa Fe Railway Company, to recover damages for injuries suffered in falling from the top of a refrigerator car.
The first claim of error is that appellee was permitted to recover under the state statute when he had alleged and proven a cause of action under the federal law. The petition of appellee does state that the appellant was engaged in interstate commerce and that the refrigerator cars which were being sealed were used in interstate traffic. At the opening of the trial a question arose as to whether appellee was seeking a recovery under the federal or the state law, and appellant asked that the appellee be required to elect under what law he was proceeding. The court held that he was not compelled to make an election, but that he was bound to prove the cause of action alleged in his petition, which, it was stated, appeared to be a cause of action under the federal law. On the conclusion of appellee’s testimony a demurrer to his evidence was filed, and the court ruled that the evidence introduced was not sufficient to show that appellee was engaged in interstate commerce at the time of his injury. Appellee then asked and obtained permission to offer further testimony on that issue, and the testimony offered showed quite clearly that the cars which were being sealed were being used in interstate traffic. The court, however, ruled that the proof was insufficient to prove a liability under the act of congress, but that it was sufficient to go to the jury- under the employers’ liability statute of Kansas. It appears that appellant was insisting in the district court that the proof did not establish a liability under the federal law, but it is now contending that the proof offered tended to pr.ove that appellee was engaged in interstate rather than intrastate commerce at the time of his injury. When a state of facts is set up which come fairly within the federal act, and the proof sustains the averments, the liability must be determined by the provisions of that act. When congress'acts upon the subject of interstate
There is reason to complain, however, of the rulings of the court on special questions. The court refused to submit the vital question, “If you find for the plaintiff in this action, in what respect do you find that the defendant, its officers and agents and employees were negligent?” Another question, asking the jury to find what act or omission on the part of the defendant caused the injury, was likewise refused.. .This was an important question of fact that was within the issues of the case and upon which competent testimony had been offered, and the appellant was entitled to have it submitted to and answered by the jury. • (W. & W. Rld. Co. v. Fechheimer, 36 Kan. 45, 12 Pac. 362; A. T. &
There is complaint of the instructions, but no substantial error is found in them.
For the error in refusing to submit important questions of fact and for the inconsistencies in the special findings returned by the jury the judgment must be reversed and the cause remanded for a new trial.