8 Kan. App. 61 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
This action was begun in the district court of Wyandotte county by the defendants in error against the plaintiff in error, under section 422 of the code of civil procedure (Gen. Stat. 1897, ch. 95, §418), to recover damages on account of the death of the infant daughter of the plaintiffs, whose death, the petition alleges, was occasioned by the operation of defendant’s passenger-train on the 16th day of June, 1893. ■ The child was about thirty-four months old at the time she was killed. The petition alleged that the child was killed on the right of way of the railway, not at the crossing of any public highway or street, within the corporate limits of the city of Kansas City, Kan. ; that the train was being run at a high, dangerous and reckless rate of speed within the city limits, in violation of the ordinances of the city ; and that the servants of the defendant in charge of the train were also negligent in not stopping the train or making any effort to slacken its speed or get it under control after they had observed the child upon the railway track.
The defendant answered, first, by a general denial of all of the allegations of the petition except such as are
The plaintiffs replied by general denial to the allegations of the answer made by way of defense. The case was tried to a jury and resulted in a verdict for $1020 for the plaintiffs. The jury also returned with their general verdict answers to thirty-six special interrogatories submitted by the defendant, many of which the trial court ought to have refused to submit to them. The material findings of the jury are that the child was killed on the right of way of the railroad company ; that that part of the railway right of way where the child was killed is within the corporate limits of the city of Kansas City, Kan. ; that the house in which the plaintiffs lived at the time the child was killed was 125 feet south of the railroad-track, and that the plaintiffs had lived there about two months prior to the accident; that trains passed to and fro on this line frequently, and the plaintiffs knew this, and that it was dangerous for their children to be on or near the track; that they knew further that there was nothing to prevent this child from going on the track if left unattended ; that the parents were not negligent with regard to their care of and attention to the child ; that the right of way of the
We will consider the errors assigned in the order in which they appear in the brief of the plaintiff in error. It is first contended that the verdict and findings of fact are not sustained by sufficient evidence. There is no doubt in our minds that the evidence fully warranted the verdict and findings of the jury. The second assignment is of a general character, and is of errors of law occurring at the trial and duly excepted to at the time. Under this assignment counsel contend, first, that the petition was defective, in that there was no sufficient allegation of pecuniary or special damage to the plaintiffs as next of kin. It is suffi
The next assignment is that the court erred in receiving incompetent evidence ; and under this head counsel contend that the court erred in admitting in evidence ordinance No. 522 of the city of Kansas City, Kan., over the objection that the ordinance was on its face void because of the provisions of section 8, which are as follows : ‘ ‘ The provisions of this ordinance shall not apply to the Inter-State Rapid Transit Railway Company, except with reference to funerals or other processions.” Upon this objection being made, the plaintiffs introduced evidence tending to show that the Inter-State Rapid Transit Railway Company was in fact a street-car line operated with electrical engines and was not within the provisions of section 2 of the ordinance at all, which is the section applicable to the case. The ordinance in our view was not void and was competent evidence to be ad
There was a further objection to the introduction of the ordinance, that it was unreasonable and in restraint of commerce, because of the fact that the part of the city where the accident occurred was uninhabited, and, therefore, there was no reason to impose this restraint on commerce such as exists in the more populous parts of a city. Had the track of the railroad company been fenced, as in'some of the cases referred to by counsel in the brief, and had the country where the accident occurred been agricultural grounds, the objection might have been tenable ; but the evidence in the record discloses the fact that that portion of the city where the accident occurred is not thinly populated and is not agricultural lands ; that the track of the company was not fenced ; and that all the dangers to which the inhabitants of the city were subjected existed in that part of the city as well as in any other part, though probably not to so great degree, but it was simply a matter of degree.
It is further contended that the ordinance is obnoxious to the provisions of the fourteenth amendment to the constitution of the United States. This contention cannot be sustained. (Railroad Co. v. Richmond, 96 U. S. 521.)
It is again contended that the ordinance is obnoxious to the provision of the state constitution in that it is not uniform in operation. It is only necessary that an ordinance of a municipality affect all in the same situation or under the same conditions alike, and so far as concerns the application of this ordinance to railways it is uniform in its operation. The exception of the Inter-State Rapid Transit Railway, as heretofore
Under the second assignment of error, and in the fifth paragraph of counsel’s brief, they argue the question that the court erred in overruling the demurrer to the plaintiff’s evidence. In our view of the case, there was sufficient evidence to go to the-jury, and especially in view of the fact that the defendant was running its train in violation of an express ordinance of the city. It is contended that this, ordinance did not apply to the case because the acci
' The next assignment of error is that the court erred in refusing to give certain instructions requested by the defendant. The substance of the third, fourth, fifth and seventh requests was given clearly and expressly by the court in its general charge. The thirteenth instruction complained of by counsel is as follows : “ The jury are instructed that, as a question of law, great reduction of speed cannot be required outside of the built-up portion of the city.” This instruction is not applicable to the case. It would have been misleading had it been given. The substance of the fourteenth request was given.
The fifteenth request is 'that no rate of speed would be negligence as affecting one who was on the track of the railway company without right. We cannot
The real question is, Was there any duty, public or private, which the defendant owed to the deceased infant which it failed or omitted to perform?. Admitting that it had the right to the exlusive use of its track, that the infant was there on the track without a license, yet under the ordinance of the city, as well as by the dictates of humanity, the company owed to the infant, as well as to every other member of the public, a resident of the city or sojourning therein, not to run its trains at a dangerous speed within the city limits — a speed that would be dangerous to persons on the track with or without license — and in this it failed. It was conducting its business in violation of the laws of the city in which it was. It is found by the jury that, but for this violation of duty, the death of the child could and would have been avoided.
The sixteenth, twenty-first, twenty-second, twenty-third and twenty-seventh requests were given in the ■court’s general charge. Number 1, of which special complaint is made, is a direction to the jury to find for the defendant. Under the facts as they existed, as heretofore stated, it was not error to refuse this. The foregoing are all the instructions specifically mentioned in brief of counsel for plaintiff in error.
The next assignment of error is that the court overruled the motion of the defendant in error for judgment on the special findings. The special findings support the verdict of the jury. It would have been error to sustain the motion. While there are some
Counsel contend further that the material findings of the jury were not supported by any evidence. If the ordinance complained of was eliminated from the record, there might be a fair ground for contending that the court erred in sustaining the findings of the jury that the child’s death was caused by the negligent act of the servants and agents of the defendant. Or, had the accident occurred outside of the city limits, in a rural district, a sparsely populated community, it might be said with some show of reason that the evidence did not disclose but that the engineer and fireman did all they could to preserve the life of the child after they say that they recognized her as a child.
The seventh assignment of error is that the court overruled the defendant’s motion for a new trial. A careful scrutiny of the record, aided by the diligence of counsel, has not enabled us to discover anything in the record which was error materially affecting the rights of the defendant. There was no ground for granting a new trial. The eighth assignment is that the verdict is contrary to law. It follows,- from what we have said heretofore, that this assignment cannot be sustained; and these remarks likewise applj- to the ninth, which' is that the verdict is not sustained by sufficient evidence.
The judgment of the trial court is affirmed.