*1 defendant part finding negligence support in view problem same confronted with jury apparently De this. situation was 4.No. special question of its answer to per miles forty-five speed at legal proceeding fendant was speed excessive traveling at an oncoming vehicle hour saw right had the Defendant hour. per miles eighty of sixty-five to her own continue law and obey would that Helen assume (Win as she did. lane over into his road and not side come Co., 297 P. 2d v. Tri-State Insurance fough a similar involving 2d 298 P. Penner, 179 Kan. Meng v. in cannot be emergency doctrine accident, it stated that the driving down negligently he is voked in favor of a when the doctrine would contrary, On the of the road. wrong side On the record adversary. be more invoked favor of his properly would here, problem that a more can formidable likewise said determination had presented judicial solution that the jury been reversed. We conclude was correct parties harmony on defendant’s finding part. no This is with our decisions cases. many similar We will extend opinion other contentions by treating by plaintiff of error raised them in accordance S. disregard provisions but will with the G. 60-3317, part which reads in as follows: disregard appellate irregu- "The court all mere technical shall errors appear affirmatively prejudicially which do not larities to have affected rights party complaining, appears upon substantial where it the whole justice judgment has record that substantial been done order of . .” court. . trial justice We are convinced substantial and, has been done in ad- not, dition, he, nor could did al- affirmatively show suсh affected his errors leged prejudicially substantial rights. Affirmed. 41,049
No. Appellee, Creten, Chicago, Arthur Rock Island and Pacific a Corporation, Appellant. Company, Railroad
(337 1003) P. 2d *2 Opinion April 1959. filed Cleave, cause, M. Van Topeka, argued and Thomas Davis, Clayton M. Cleve, Jr., all McAnany Van M. Phillips, Thomas B. L. Patrick Willard briefs Topeka, Bennett, were with him City, Kansas and Mark L. appellant.
for Schroeder, cause, E. argued Thomas, City, J. Kansas Leonard O. Bingham and Millsap, H. Weeks, Robert Lysaught, D. Richard Lee E. J. for the briefs him on Johnston, City, Ervin G. all of Kansas appellee. delivered opinion court was . out of arising damages an action J.; This was Fatzer, an irrigation passenger collision between a Rock Island the plaintiff, trailer owned a two-wheel pump mounted LaRue, Pacific the Union Scott, Marvin Arthur Cretеn. George *3 Rail- Pacific and Rock Island Railroad and the Company Chicago, was of summons Service road were named defendants. Company the operating were not made neither nor LaRue on Scott and he to plaintiff’s train of demurrer at time collision. LaRue’s the the be- ruling of that is not and the propriety was sustained the against and plaintiff us. a verdict for fore returned Chicago, Rock and Pacific Railroad Company (defendant), Island Following the guilty negligence. and did not find Union Pacific motions, defendant has overruling post-trial appealed. the the in the amended part, allegations petition Summarized of the that on and jointly were the defendant Union Pacific owned, operated crossings maintained and tracks and Wyan- in thereon; County, Kansas, operated and such dotte trains that one the south was located on side of Kansas crossing Highway runs the right way to railroad about a parallel mile east Muncie, by which was built and established defendant and Union as a years ago private crossing, Pacific but then some since has the public used and by generally by been gain the a tracks; field which he rented access the south side the in the day on the defendants that the maintaining a crossing, disrepair but was in state of and had many been for in large that there were holes months and depressions between the rails, and that and planks defendants knew or the in exercise of should have known it reasonable care was in such a state. alleged further the It was that on morning in question Billy of the employee plaintiff, Crispin, plaintiff’s left farmyard driv- pulling a tractor Hercules ing pump mounted on a two-wheel River Kansas the trailer, intending pull rubber tired field irrigate the river from water for the of pumping purpose south of field in the grown and owned growing crops nowas there crossing, tracks; that, approached as Crispin doing but crossing to cross train sight proceeded track, main line north or westbound cleared the and after the tractor trailer tongue of the caused the uneven rough planking attached trailer with the come loose from tractor became trailer that after the crossing; on the thereto became stalled from train loose, approaching noticed Rock Island Crispin crossing; east, then more than a mile east which was stalled trailer clear, track and the was no curve day was there and fire- engineer track visible to the standing clearly was should, in the by them, man train and seen operating the them, maintained have lookout to be exercise of the than a mile cross- when the train more east seen parked dismounted from the tractor which he had ing; Crispin from the cross- south of the the trailer attempted pull tracks hand, unsuccessful; but ing by clearly these efforts were fireman; that, these engineer notwithstanding visible to the facts, train at of 80 approached speed per miles not at any hour and did time slacken speed; should, fireman could and in the ordinary exercise of and reasonable care, saw, after stopped they or in the exercise care, ordinary reasonable should have seen trailer stalled should, could and reasonable the exercise of care, collision; avoided that they were keeping no look- the track along out in front of the train as they approached *4 crossing and that it was their duty keep such a lookout and to have after stopped they should, saw or in the of ordinary exercise care, and reasonable have seen the trailer stalled on crossing and that as a result of their negligence, train struck pump and trailer and demolished them.
Plaintiff alleged further drouth in occurred the summer of 1954 and on July the crops planted himby in field to be irrigated were in need water; of immediate plaintiff had no other with pump which he could irrigate crops and was unable another, to obtain a result, as the crops withered and died. Defendant and Union Pacific answered denying the allegations of the plaintiffs petition alleged that any or injury damage sustained by plaintiff was solely proximately caused by his carelessness and negligence or that of his employee, Crispin, and prevent measures further, appropriate failed take plaintiff growing his suffered to have may or which he mitigate any damage crops. inconsistent the answers all allegations denied reply
Plaintiff’s petition. with in his alleged those returned trial was thus joined,
With the issues $10,000, answers and made of plaintiff its verdict favor follows: special questions, the collision “Question where was the No. 1: On and use the convenience private way tracks for across railroad occurred immediately tracks? railroad south of the the owners tenants land Answer: Yes. per “Question speed in miles hour No. 2: At what rate of applied? immediately were
traveling prior on the train the brakes to the time p.m. Answer: 60-65 h. given Traveling speed the answer to “Question No. 3: the rate of at stopped Question a maximum the train be No. what distance could application feet. brakes? service to the train Answer: point “Question was the front far of collision No. 4: How east from applied? end 700 feet. of the train when the brakes Answer: “Question the collision occurred No. 5: How far where from realized, or in the exercise of the front of the train when the not due under the have could care circumstances should realized feet. removed Answer: 1445 from track where the collision occurred? you Chicago, “Question No. 6: find Island & Railroad If Rock Pacific Company guilty any negli- negligence, specifically state such then what gence by engineer Negligence seeing pump in time. consisted. Answer: guilty you Company “Question 7: find Railroad No. If the Union Pacific any negligence, specifically state such consisted. then what (No answer.) Answer: “Question employees provided No. 8: If his had an ade- quate safety hitch in the tractor addition the draw-bar connection between pump, trailer could removed from the tracks before collision occurred? Answer: No. “Question negligent? No. 9: Was No. Arthur Creten Answer: Billy “Question negligent? Crispin No. 10: Was Answer: No. “Question No. 11: Was the collision an accident? Answer: No. unavoidable Creten, “Question diligence No. Mr. 12: Could in the exercise due under purchased all of the circumstances have rented or which to ir- rigate thereby crops? his field Yes. avoided loss Answer: his “Question your plaintiff, No. If 13: verdict is for the then the amount state damages, any, yоu if allow for: “(a) Damages pump. $1600 Ans. “(b) Damages crop. to the $4500 cucumbér Ans. “(c) Damages crop. turnip $ to the Ans. “(d) Damages squash crop. $2000 Ans. “(e) Damages crop. $ the field corn Ans. “(f) Damages crop. to the sweet corn $1000” Ans.
The defendant has from the orders of the trial court appealed evidence; its overruling demurrer its for a di- plaintiff’s motion verdict; rected its for upon questions; motion judgment special its objection admission of by certain offered plain- tiff; its motion to require plaintiff theory to elect between last clear chance and as a basis theory of primary for its recovery; motion to set of the aside special findings numbered 13 its conform the (b), (c), and motion (d), (e) (f); jury’s verdict and the finding amount thereof special (a), and its for motion trial. new Defendant also error specifies instructions, the trial court’s give refusal to certain requested of certain giving instructions by defendant. objected While eleven separate of error are the de- specifications assigned, fendant briefed has and discussed under them five main points. Those to a necessary will discussed in the order they decision appear defendant’s brief.
The evidence disclosed the record is as The follows: defendant trains operates its over tracks the Union Pacific between Kansas City Topeka. Signals the movement regulating trains are maintained Union Pacific. The train here involved left Kansas City morning of toward To- going peka. It consisted of fourteen cars and a Diesel locomotive of three units. Clarence F. Kraus was the Lawrence Harms J. was the fireman. Kansas lеaving City Trains west going pass through the Muncie area.
At struck, crossing where pump was there are four tracks; middle, track, two main lines (east west), passing, and a track. business This is located crossing about 700 feet west of what is known as the Kansas Avenue (Muncie) crossing where Kansas 132 crosses the Highway tracks. (Highways and 132 are different The limit highways.) yard leaving Kansas City is ap- three miles east of the proximately Muncie crossing and Ferry three-quarters of a mile east of the Muncie crossing. Thus, there are crossings two between the yard limit and the crossing where collision occurred. The tracks are straight, level and unobstructed for about 1.9 miles east the crossing in ques- tion cars over the tracks at the except passing Ferry Muncie Lumber crossings. Bishop has Company several buildings lo- north of the portion cated on the right way on both sides of the question, plaintiff’s farmyard is located north of west of that Highway crossing. 1954 plaintiff was rent- a tract of bottom land ing south Union Pacific right east of way farmyard. his *6 the kept repair The was maintained and crossing question Pacific, to get and it for or ten eight years Union had used fifteen to and from the rented land. On there were cucumbers, squash, acres of twenty acres of fifteen acres of turnips, of field ten or fifteen acres of sweet twenty acres com and about could, corn in the field. Plaintiff had as he long waited planted it rain and he wouldn’t have to but since thinking might irrigate, water, it had not rained and the needed he the crops pulled irriga- the tion out of the shed so that it could be hooked pump up Creten, son, and to the field. pulled plaintiff’s tractor Bob hooked Billy the to the tractor and pump up Crispin, employee plain- tiff’s, the tractor to the field. drove wide, long, about 62 62 inches and 61 was inches pump
The balanced on weighed pounds. and about It was high inches man a tongue so that one could lift the and hook it to trailer the a painted bright yellow, was the pump drawbar. long visibility. color for distance There chain safety best was no the it pump; only way or hitch on the was attached tractor If the drawbar connection. there had safety was been such a could hitch the moved off the track before the col- though occurred even the drawbar lision connection had broken. that, on testified Billy Crispin morning in question, he left driving the tractor with plaintiff’s farmyard pump attached and 32 where he Highway went south to turned east and along went a one-quarter for about of mile highway then turned south to over the go field where they were going When reached irrigate. he the crossing he stopped and looked ways coming. both but saw no trains As he started across the tracks, jerked lunged tractor the pump came loose tractor. He looked from the saw the train coming from around bend 1.9 miles east of about the crossing so he took the tractor the tracks to the south get on across it out of the way, got off back push and went off track, but was unsuccess- trailer wheels of the ful since the between the two rails. He that when the train further testified was still about three-quarters he ran down track away mile of a toward it waiving his arms hand. his hat in his He could not tell that the train appeared However, on speed. slacken cross-examinatiоn, he admitted he a statement to the signed made effect that, “I did not try to I all because did the train at time,” flag and, “I got track from where side opposite the train was going to hit into got myself pump, clear.” To the best of his tractor between coupling bolt or pin knowledge the the tractor. from came it loose why broke and tractor up trailer hooked the testified he Bob Creten trailer tongue clevis a through down a bolt by putting field in truck and it; he went to the screwing tapa he about that when Crispin; ahead of tracks crossed he Crispin waving, field he out in saw of mile quarter back; way was about half hurried that when he around turned hands; track waving run down the his saw Crispin crossing, and in his best judgment at the Muncie then striking a mile west after quarter about stopped *7 on were July getting ready testified that they He also the pump. working it took or five days and that four irrigate crops the to field; of the they to an inch water on that were put the clock around River, which is the water from the Kansas about to going pump this, field, to they put of and the pump below level the do feet the with a and edge over the bank the the water big down cable state, He allowed to over defendant’s objections, the tractor. was ip or five after the 4th of days July that about four the were crops the water on them putting such a state that would have not good. any done the that was completely
Arthur testified demolished Creten that have another one could put he did not he down in the Clark, river; had a conversation with that he in the who was Jack had selling irrigation pumps and sold business the another pump about but Clark getting didn’t have one plaintiff, not for get days, hand could one three on that did he not The were crops another pump. completely burned about get up or four after days July got nothing he three the way He further testified off the field. that the crops pump was worth $2,000 the market and that value on crops July the were as cucumbers, acre; an acre; the squash, $700 $200 follows: an corn, corn, an $75 the field acre and sweet an $100 acre. De- the admission of objection fendant’s this on testimony the ground damages were too remote crop speculative that over- ruled. On cross-examination asked if was he called had thirty-some irrigation equipment of the any dealers listed in directory an City telephone Kansas attempt locate another had not. replied he he pump, Kimball K. Backus testified as expert witness on behalf of market value of the acre crops per $600 was cucumbers, for the squash, $250 $75 for the field com, $150 objection same made Defendant com. for the sweet was overruled. and it of plaintiff, made was testimony as morn- that on the defendant for the Kraus testified Clarence F. train involved 4, he was July ing he when hour miles an about traveling and was collision a man (Crispin) saw He crossing. Muncie reached but crossings and Muncie Ferry he was between when tracks the man would assumed timé because he at that not concerned traffic over was considerable track, because there off the get Also, some there were watch. that he had to Muncie Muncie reached the track. he along the When boys playing small the track he made off getting the man he saw brakes, the train’s but did not put full service application of his might injured he some emergency brakes because man got He did until off the not see passengers. time, and, about 200 or 300 feet from it. His track at that attention was focused the actions the man. did not notice He down the track toward arms anyone running waving his him, and that trying flag or otherwise he kept vigilant lookout in front. on the track of the fireman testimony was substantially same engineer. dealers, irrigation equipment
Two Peter S. Cuica and C. D. Jen- sen, testified for the defendant that on they irrigation had on hand and could made pumps immediate delivery to the *8 Each his stated company plaintiff. listed in the classified sec- City of the Kansas telephone tion directory and he could be on Sundays reached or holidays, that pumps could be pur- chased or rented. undisputed
The evidence was that July 4 was on Sunday and addition, 5 was a In holiday. and, evidence showed of this purposes appeal, plaintiff concedes, that the crossing where the collision occurred was a private, not a public, crossing.
Defendant first contends that the trial court erred in overruling its demurrer to plaintiff’s evidence, or its motion for directed ver- dict should granted have been because the evidence showed plain- tiff guilty to be of contributory negligence a as matter of law and because the evidence was insufficient to prove a cause of action upon based either theory primary negligence or last clear chance.
As preliminary to discussing defendant’s contention, we note the oft repeated jurisdiction rules this that: (1) In testing the suf- shall consider demurrer, court a as
iiciency against that favorable true, consider shall all the evidence as plaintiff’s there- be drawn inferences to reasonable together all plaintiff, weigh and shall plaintiff, disregard from and that unfavorable between differences nor weigh any contradictory any is part considered, there any if is cross-examination, and direct on any case support tends to plaintiff’s supports (cid:127)evidence which Moore, 184 v. (Drake demurrer be overruled. should theory, the 807, and cases therein Mffiere 309, cited.) (2) P. 2d Kan. evidence, after the demurrer defendant demurs plaintiff’s evidence, own overruled, to introduce his proceeds has evidence and the close plaintiff’s cure at may any insufficiency evidence, must sufficiency go of all of the its introduced both by determined consideration of the evidence Durr, 233, Kan. the defendant (Ziegelasch v. 295; P. Rogers, 326 P. 2d Estate 2d re In determining plain- cases therein whether cited). (3) demurrer, tiff guilty when contributory is tested must be submitted to the facts of record question jury if the minds, are and impar- such reasonable the exercise of fair might and, tial reach different thereon fur- judgment, conclusions ther, question negligent act proximate whether cause is reasonable, of an injury, whether man ordinarily prudent would seen that occur injury might negligent a result act, Moore, also a fact jury. (Drake is for the supra, and cases therein cited.)
With principles these in mind a brief review of the evidence engineer shows and fireman had a clear and unobstructed in front of the view train for distance 1.9 and that miles straight track аnd level for that distance. bright Plaintiff’s had yellow stalled on a private become crossing between the track upon train rails which the was approaching. Neither nor the fireman saw the until they were 200 or from and away 300 feet neither saw Crispin attempting flag train. The struck the pump totally destroyed it. defendant first that G. argues S. 8-5,118, which provides, towing “When one vehicle another the drawbar or other connection shall *9 strength pull, stop weight of sufficient be and hold thereby all towed (b) . addition . In any . the drawbar connections between two such provided adequate safety there shall be
vehicles hitch . . .” and, is since did applicable, plaintiff provide an adequate safety hitch, guilty was of contributory negligence aas matter of law. track stalled became trailer It further that since argues things of two both or one either lunged jerked after the tractor to as tractor so handled the or drove carelessly Crispin occurred: connec- drawbar breaking thereby lunge jerk, it to cause onwas that the trailer tractor tion, and operated or he so drove high, too rails that were between and down only part matter aas contributory negligence event, either was and in this of law. en- originally code 1949, 8-5,118 of the vehicular is part
G. S. 1949, 8-502) Section 2 S. 118, (G. L. Ch. 1937. acted as Sec. relating of this act “the provisions chapter provides of the same of operation to the exclusively vehicles refer to the of operation not ma- which are exceptions with certain highways” vehicles upon high- 8-501) S. defines terial to Section appeal. (G. this of or every way proрerty entire width between lines way as “the use thereof any part open of whatever nature when is place traffic,” of vehicular right, purposes as matter of public, road or private driveway “every way place and defines or vehicular travel by used for the owner and private ownership owner, from having implied permission those but not express Thus, 1949, 8-5,118 other G. S. to ve- by persons.” applies only and not public highways hicular traffic to traffic on upon private We are not confronted with property. question whether plain- tiff would as a guilty contributory negligence matter law violated the statute having traveling upon Highway 32 with- out hitch safety since the undisputed evidence showed where collision occurred was a private crossing used implied which with the permission of Union Paсific. is whether plaintiff violated question the statute on while pri- guilty thus was property contributory negligence vate aas seen, As we have matter of law. the act itself provides that to the applicable operation only upon vehicles highways. Bassett, 152 P. v. 2d Smith the court said: “Appellant private insists that since the accident occurred property on general governed pertaining rules public is not case to traffic on roads. relating specifically solely Clearly operation to the statutes vehicles operation pertain highways private do not public of vehicles prop- (1. c. erty. . .” . the statute was inapplicable conclude
We private cross- was not guilty ing, contributory law by failing provide matter of an adequate as a safety hitch. Crispin guilty to whether As contributory negligence, that upon reasonable question minds could differ and (Drake for the jury. Moore, therefore a supra.) *10 398 negligence actionable establish to sufficient
theWas clear or last negligence primary either theory of based plaintiff of the relationship argues Defendant chance?. cross the private of to railroads in use employees and his to a permission bare licensee with that of than no more ing to a license stop not cross track; that license to cross the pump caused track; plaintiff when obstruct on and of his the scope was beyond track he and remain to stop owed him that the defendant trespasser a and became license no to duty and owed him wantonly injure not to except duty no not wanton lookout, did show the evidence a and since maintаin there was violation of a defendant no part conduct Hence, plaintiff defendant failed him. concludes owed to duty demurrer motion actionable establish to While the ques sustained. verdict should for directed to a is exer company care railroad tion of the degree private argued over a operation crossing in the its cise Co., 98, 102, 103, Rld. v. Missouri 175 Kan. Strauss 259 Pacific 145, it was not and our consideration expressly passed upon, 2dP. compels in this the conclusion that defendant’s point appeal of the is justified. contention not outset, it is there in the
At the
be stated
a conflict
as
may
cases
under a
maintain a
duty
whether a railroad
is
look
company
S.,
crossings.
Railroads,
[c],
out at
C.
private
(74
738
p. 1383.)
§
J.
However,
a
company voluntarily
where
railroad
constructs and
it
repair
crossing
keeps
place
maintains
at a
other than a
public street
it
highway, knowing will be used and has been used
someone,
to,
it in
invite,
effect
its consent
gives
if it
not
does
use of the
crossing
operate
has the duty
its trains over such
crossing with
regard
reasonable
to the
of those
safety
who might
it. The
rightfully using
railroad
warranted
treating
of the
users
trespassers
as
and must maintain such a
lookout
requisite
isas
with
the exercise
care.
due
(Johnston v.
Delano,
498, 506,
175 Iowa
1013;
154 N. W.
Railroads,
74 C.
S.
J.
[d],
1383,
pp.
See, also,
§ 738
Illinois Cent. R.
Lee,
Co. v.
496, 498;
2dF.
Great
Alabama
So. R.
Martin,
Co. v.
205 Miss.
501;
2d
So.
Lamontagne v.
8,
Railway,
6,
97 N. H.
835;
A. 2d
Ives v.
York,
New
N. & H. H. R. Co.,
Conn.
highway; was not com- defendant at and the it, duty, duty, pany some and that view was exercise him we owed to ordinary injury property care to avoid or his in the lawful and private way. knowledge company had use of his actual reasonable knowledge way, presume that it we must existence had period during of more made had made of it use facts, and, ordinary years; knowing twenty these it was bound to use than circum- diligence, prudent under same man exercise such would as a way private plaintiff’s upon cattle stances, any collision avoid *11 duty of operation was of road. It the doing any injury in the its them or especially track, upon the engineer obstructions on lookout for the the of particular day. custom had been the time It at of this at this the across drive years his cattle plaintiff during mentioned the all the buildings. clear The pasture his farm track from his lookout, had he in engineer the been on that had the uncontradicted him, diligence law of which the care and exercise of that the in- avoided time to have upon track cattle discovered would 118, 119.) (Cases (1. cited.)” c. juring them. 346, 220, the court Pac. Co., 103 Kan. v. Railway In Morris said: upon public kept persons lookout, course, cross- for must be of "... A parts passing persons or certain of safety over
ings, of likewise for (1. (Emphasis supplied.) 224.) permission. by . . .” c. or license the track that case shows in the instant The evidence it for a that had used Union Pacific kept repair and fireman were ten years. from eight period it traveling through and had been the area with acquainted well to maintаin a lookout duty under a were years. They for many they or not breached the track and whether upon for obstructions the jury. for duty the amended allegations petition urges (cid:127)Defendant insufficient to raise the the evidence were disclosed the facts chance. but no sense Assuming, deciding, last clear issue case, this still would not justify sustaining such was the motion for a directed verdict. They were the demurrer chance, because last clear if properly pleaded overruled properly grounds one of the only upon could proved, If the evidence recovery. relied for was sufficient to take jury upon any theory, case to the the demurrer and motion Co., v. Phillips overruled. Petroleum properly (Claggett seen, 92 P. 2d As we have Kan. the evidence was case to jury to takе the on the theory sufficient of primary the demurrer and consequently, motion for negligenc'e; a directed overruled. verdict were properly contention
Defendant’s second is that the trial court erred in 8,6, questions to special answers to set aside its overruling motions for judgment 10, (f) (d), (e) (c), (b), verdict, general notwithstanding findings special remaining verdict, acquit with general inconsistent they are claiming a matter it to judgment and entitle negligence, defendant of law. rule to the well-established this refer In contention we considering of two susceptible are findings special that where will, will if the one which adopt interpretations, possible, court (Clag verdict general and sustain findings harmonize the Petroleum, Co., v. Yellow Cab Co. Taggart gett supra; v. Phillips Concordia, Wichita, 88, 94, 131 924; City P. 2d v. Snyder 156 Kan. 820; Bank, State Guaranty 320 P. 2d Sparks 182 Kаn. 1062; Co., 2d v. Home Oil 182 Kan. Applegate 318 P. 324 P. In the case was said: 203). Sparks 2d court, give possible, such answers “. . . This if will a construction to special harmony general questions bring verdict. as will them into with the Also, considering special questions jury, will not answers to court interpretation thereon, ignoring place isolate answer and a constrained one others, interpretation together. them If leads will consider all of one but verdict, inconsistency harmony general the latter and the other to with the findings, adopted. judgment will be order to sustain a motion *12 They inconsistency among findings. not that it is sufficient there be the some contrary clearly compel general be to court to verdict the must as contrary judgment a a law. the verdict and render as matter of overthrow 167, (1. . .” c. . Moreover, the for the special purpose are not be used questions an v. Public Service trapping unwary jury City Kansas (Eldridge Co., 175 Kan. P. 2d 267 923).
Other ordinarily general rules are that a requiring application verdict a in all finding prevailing party upon favor of the imports that is not general issues extent verdict case 319, findings Schmidt, inconsistent with 172 special (Krey v. Kan. also, 240 P. 2d obtaining that for 153); purpose ruling a motion judgment special questions answers to notwith- standing verdict, general motion findings admits Lewis, 59, 202, true v. 173 244 (Banbery Kan. P. 2d and cases cited therein; Mills, 631; v. 177 277 Gladney P. 2d Applegate Co., Home v. Oil supra).
Defendant answer question contends the 6 may be set aside disregarded conclusion, because is mere and cites Krey v. Schmidt, supra. We do not The agree. question required
401 consisted what defendant’s specifically to state seeing in not negligent that the engineer and its answer was finding conclusion, but a not a The answer was time. that conclusion fact, jury’s upon of an based no doubt ultimate lookout. keep proper failed to evidence, contrary the answer to Although question was seen, crossing, plaintiff as we of the private the use hitch in addition to duty provide adequate safety under no Thus, connection. and answer drawbar become immaterial.
We not agree jury’s questions do answer to are fact, conclusions. are merely They clearly findings of ultimate such, may as not be disregarded. Defendant cites relies Durr, upon v. Ziegelasch supra, Bennett, and Scott v. 181 Kan. 312 P. 2d but are not in they point. Those cases hold that gen- eral answers to questions, general nature and calling for con- clusions, if contradicted by special or detailеd findings, pre- cannot vail, but are controlled must yield to detailed findings of ultimate facts. In the instant case there no were special findings which contradict the answers to questions 9 and and the evi- dence upon which they based was disputed, rather than un- Durr, as in disputed Ziegelasch supra.
Defendant strenuously urges the answer to question acquits it of negligence. It contends answer to this question should be construed that the engineer should have realized the could not be removed when the train was 1445 feet away collision would occurred anyway since the answer to question 3 was that it 1970 feet to the train stop at a going speed of 60-65 miles hour. per agree. We do We think question in is, fact submits two questions: first when did the engineer removed; is, realize the could not be second when should fact, he have under the сircumstances. There realized difference the two. compliance duty between of this court to answers to give special such a construction questions verdict, them in with the bring harmony general will and in view *13 6 that the defendant’s con- of the answer to question time, we think sisted of not seeing jury’s finding mean the distance the train interpreted 1445 feet must be to realized the could not engineer from the when moved, when question, second should leaving be unanswered
402 construed, the to ques-
he have realized that fact. As thus answer imparts tion 5 is not inconsistent with the verdict which general could not should have realized finding the crossing. at least 1970 feet from moved when he was the contentions here- to findings respect All of evi- discussed, substantial are except finding supported tofore to compel so as dence are not in conflict with the verdict general as a a contrary judgment it and this court to render overthrow matter of law. main- the defendant crops, to respect damage plaintiffs
With to 13 (c), to (b), set aside the answers tains was error to refuse to to special conform verdict to refusing (d), (e) (f); the admission to its overruling objection 13 and in finding (a), such loss (1) because: of the crops to the value relating element be a proper to and speculative or was too remote damage mitigate required under the law plaintiff damage, (2) to do. such this he failed any damage, and remote not too damage was such Assuming, arguendo, a con- turn to we damage, a proper element speculative be' lawby whether sideration of the question circum- under and whether suffered mitigate damage he lawby was required If plaintiff he could have done so. stances motion so, then the failed to do mitigate damage and he should have been finding (a) conform verdict to special sustained. appropriate failed to take defendant pleaded him and proper available as were reasonable readily
measures damage or prevent mitigate any under the circumstances to suffered, care and that exercise reasonable may he and should have diligence prevented he could and avoided damage crops.
It is a rule of law that who is general injured by wrong one acts of another bound to negligent ful exercise reasonable care under circumstances to avoid minimize diligence or to loss resulting damages to the extent that his damages are the result of failure to such care and exercise diligence, cannot 515, 135 Kirkpatrick, 579; recover (Atkinson Kan. Pac. Whole al., sale Co. v. et Grocery City, Kansas Kan. 224 Pac. 47; v. Oklahoma Natural Gas Corp., Kan. Griffin 662; Western Light Pac. Fritz v. Corp., Power 140
403 46; 299 P. 2d Kan. 90; 180 Humburg, 2d Foster v. 36 P. 137; 15 Am. 2d 513, 505, 306 P. Rexroad, 180 Kan. Anderson v. to a duty under Thus, was 27, plaintiff Jur., p. Damages, 420). § to circumstances the under diligence care and exercise reasonable and undisputed the the crops to mitigate damage certain irri- calling pump by another he could have obtained equip- of such on Dealers telephone. dealers gation equipment on and July hand pumps had they irrigation ment testified or by plaintiff contacted been reached they could have Sunday 4 was July though July date or on even been could have delivery 5 was a and that immediate holiday, Moreover, question answer special to jury by made. its of reasonable have, by could found that the exercise circumstances, purchased all the rented or diligence under crops. loss of his with which his avoid irrigate thereby field for that loss. do, he failed to not recover may This he Brokmann, analogous Lawson Pac. attached and A baler was presented. hay wrongfully situation have might held for time. The for he profits owner asked The court de- by earned while it held. wrongfully its use claim, nied and said: allowance (the them, owner) procured . “. . If he had contracts or could power procure duty purpose, or it was within his a baler for that rent perhaps might by or have obtained the return of baler mere he his own sitting idly by warranted execution of bond. He was not in in his order damages by profits might by for he enhance his demand have earned the use duty mitigate damages any practical the baler. was his in It way (1. . that was available to him. . c. reasonable .” here, had power it within his purchase to rent As irrigate with which could his field and avoid loss of his he was warranted crops idly by order to sitting for damages by enhance his demand allowing crops die Thus, lack the trial of water. court erred in from to set failing aside answers to (b), (c), and to (d), (e) (f) motion conform defendant’s verdict sustain special findings reducing amount verdict to $1600. points argued defendant, Other briefed but view the conclusions heretofore announced we think it to discuss and decide unnecessary them. From what has been said, it judgment follows the trial court insofar allowance of for damage pertains to the loss of crops is re- versed, damage and insofar as it allows destruction of is affirmed.
isIt so ordered. I J., dissenting part: agree with our holding that Price, *15 damage allowance loss of should crops be reversed and set aside, I disagree but with the affirmance of that portion of judgment allowing damage for destruction of the pump. dealing
We are here with of a specific findings jury disputed and are of fact to take them at questions their literal face value. says realized, or,
Answer No. 5 that the engineer in the exercise circumstances, of due care under the should have realized could not be removed from the track when the train was 1445 feet away. No. 4 says
Answer brakes were applied when the train was 700 feet away. says
Answer No. 6 the railroad was the negli- gence seeing time. I only logical answers, think the construction of these three con- is that when 1445 feet together, sidered away engineer should brakes, but he did not do so until after applied the train had travelled 745 feet—therefore he was negligent. far, so that is not all this good jury So found! —but 3 it found that with answer No. also maximum service-appli- take 1970
cation of the brakes would feet to stop train. found, therefore, that if This even the engineer had applied realized, the instant he first the brakes at or should realized, track, could not be removed from the train still in that stopped could not have distance (1445 feet) have struck the pump anyway. therefore would found, facts as failure to do an act Under the which is physically negligence. does not constitute impossible (Gibbs Mikesell, 325 P. 2d effect of these special defendant findings acquit negligence, thus it to entitling judgment.