14 Kan. 37 | Kan. | 1874
Lead Opinion
The opinion of the court was delivered by
This was an action brought by Pointer in the district court of Leavenworth county, for personal injury by being knocked down and run over by the cars of plaintiff in error, near the railroad depot in the city of Leavenworth,
“We the jury find for a special verdict in the above entitled action, the following:
“First, That on or before the 4th of February, 1870, the plaintiff was passing across and along the railroad track of the defendant, in that part of the city of Leavenworth traversed by the road of the defendant, and while so passing at or near the junction of Water street with Chestnut street, which streets are nearly at right angles with each other, the plaintiff was knocked down and run over by the cars of the defendant. That two passenger cars, one baggage car, and a locomotive tender passed over the body of the plaintiff, and he was pulled out from between the wheels of the engine and tender in a bruised, wounded and otherwise injured condition of body, and in an unconscious state of mind.
• “Second, That by said cars knocking him down and running over him, the plaintiff had his shoulder dislocated, and had two of his ribs broken. That in consequence of the injuries then received by the plaintiff, he .suffered great pain and agony for a long time, and was confined to his bed for a period of about three months, and remained feeble and weak for a period of about six months, and during all of'said last-mentioned time was under the care and direction of a physician. That the plaintiff is a man between fifty and sixty years of age, and in consequence ■ of said injuries his health and strength are permanently impaired.
“Third, That it was necessary for him to procure said medical attendance, and the cost of the same was five hundred dollars.
“Fourth, That the road of the defendant at the place the plaintiff was struck and injured, was at that time commonly used by persons for passing over and across the same from the city of Leavenworth to the ferry-landing, the same being a public ferry across the Missouri river at that point, and the only means of travel at that point between the west and east banks of the Missouri river; and the same had been so used before the location of the defendant’s road at that place, and continued to be so used, with the knowledge of and without objection by the defendant, up to and including said date, and that there was no way of reaching the ferry except by cross*46 ing the road of the defendant at that or some point near that place.
“Fifth, That the streets of the city had never been graded or improved at that or any other place leading to the ferry-landing, so as to show on the surface of the ground where they wer.e.
“Sixth, That the injuries occurred to the plaintiff at a place at which persons were in the habit of passing and repassing continually, with the knowledge and without objection on the part of the defendant.
“Seventh, That the place where the plaintiff was injured was on' ground which had been used by the public as a thoroughfare from the city of Leavenworth to the landing of the public ferry across the Missouri river ever since the year 1855 up to and.inclusive of the day of the injury, and which ground formed part of a tract of territory which, by ordinance of the city of Leavenworth, approved the 21st of October, 1863, was created into a street of said city, designated as Water street.
“FJighth, That the train so moved was being backed southward with an engine, upon which the brake was out of repair, so that such brake could not be worked, and was wholly useless to aid in stopping the train; that there were no brakemen at any of the other brakes on the train to use them in controlling the train, and no flagman or other person or thing on the train to warn persons of danger or to warn the engineer; nor was there any flagman at any point on the track between the depot from which the train moved to the place where the plaintiff was injured, nor was there any whistle blown on that train, but a bell was rung by them.
“Ninth, That the plaintiff at the time of the injury was with his back to the approaching train, at a point where there was much noise other than that made by the train, and was unconscious of the approach of the train. That when approaching the road near the same, plaintiff looked up the track toward the depot, and no train was then moving.
“Tenth, That if there had been a brakeman or flagman on the rear end of the train, or at any point on or near the track and near the moving train, he could easily have seen the danger the plaintiff was in in time to have warned the engineer and caused the train to stop before the injury, or could have apprised the plaintiff of the impending danger in time for him to escape.
*47 “Eleventh, That the train was moving backward, and there was no person on the rear end of the train to warn, persons of danger, or to notify the engineer to check the train.
“Twelfth, That the injury to the plaintiff was caused immediately by the defendant’s failing to use ordinary care, and by its gross negligence in the manner of the running of the train at that time and place, and by the failure of the defendant to keep a lookout of any kind for persons who might be on the track.
“Thirteenth, That the plaintiff was guilty of negligence contributing to the injury.
“Fourteenth, That the injury to the plaintiff was caused by a failure on the part of the defendant through its agents and servants to use ordinary care in moving the locomotive and train at that time and place. That the place where the plaintiff was injured was within the-corporate limits of the city of Leavenworth, which was a city of over twenty thousand inhabitants at that time, and at a place where persons, men, women and children, had been and were in the. habit of passing and crossing with the full knowledge of the defendant, and without any protest or objection on its part.
“Fifteenth, That the only employes of the defendant on the train at the time the plaintiff was injured were three men — an engineer, a baggage-master and a yard-master — and these three employes were on the engine, the most remote point on the train from the rear end thereof, and from which place they could not see the track for forty or fifty feet from the rear end of the train.
“Sixteenth, That on or before the 4th of February, 1870, the Kansas Pacific Railway Company was the owner of and was operating its railroad from the city of Leavenworth to Lawrence.
“Seventeenth, That the ground occupied by the aforesaid Railway Company, running south from the depot in Leavenworth, was formerly uneven, and only passable for foot passengers. That the Railroad Company graded said ground, making it level for the purpose of laying their track, and that in so doing, in conjunction with the Missouri Pacific or Missouri River Railroad, so graded said ground about the width of two hundred feet from and running parallel with the Missouri river at the point whereat or about the said injury occurred, and that there was a space of level ground between the Pacific tracks and the Kansas Pacific Railway tracks of fifty feet, upon which foot passengers could walk at*48 the said point, and that on the west side of the Kansas Pacific track, apd running parallel thereto, was a road that was passable for wagons and teams; said road was about thirty or forty feet wide, and bounded on the west by a precipitous bluff about fifty feet-high. Said road ran south about one thousand feet from the depot, and was used at and previous to the time of the plaintiff’s injury, as h thoroughfare by which the public passed to the ferry across the Missouri river, a point nearly opposite the landing of the public ferry crossing the Missouri river between Kansas and Missouri, at which point the travel crossed the track of the Kansas Pacific and Missouri Pacific railways to reach the aforesaid ferry.
“Eighteenth, That the pláintiff could have reached the ferry by keeping west of defendant’s ‘tracks’ to a point directly opposite the ferry landing, and thence east across said railway, not more than ten feet wide, to said ferry.
“Nineteenth, That the plaintiff was passing upon the track Avith his head down, and persons near by, apprehending that he Avas in danger, called to him with a loud/voice warning him of his danger — these persons standing, one upon the cars of the Missouri Pacific Raihvay Company, about fifty feet away, and the other in the space between the tracks of the Missouri Pacific and the Kansas Pacific railways. That the whistle of the locomotive of the Missouri Pacific Railway was blown, AA^hich was about one hundred feet from the plaintiff. That his attention was not attracted by the signals of warning, nor did he look up, but kept in the same position Avith head bent forward until he Avas struck in the back by the ‘bumper’ or ‘draAvhead’ of the rear car upon the end next to him, when, from the force of the blow he fell forward, when the train — tAvo passenger cars, one baggage car, and the engine and tender — passed over him.
“Twentieth, That the defendant’s train was handled oh the day of the injury in the usual manner in which said train was handled Avhile backing up to be switched and left on the side track. The train was in charge of the yard-master, and neither he or any of the persons on the train kneAv the plaintiff was upon the track, and in the AA^ay of the train, until after his injury.
“Twenty-first, That on the 21st of October, 1863, the council of the city of Leavemvorth passed an ordinance laying out a street called ‘Water street,’ and there is no evidence that anything more was done in the premises by the authority aforesaid.
*49 “We the jury find for the plaintiff, and assess his damages at five thousand dollars.”
Before the jury was discharged, the defendant requested in writing that the court direct the jury to make further findings of fact, which was refused. The motion for a new trial was duly made by the defendant, and overruled, and defendant’s motion for judgment was also overruled. The court rendered a judgment in favor of Pointer upon such special verdict, for the sum of five thousand dollars, and costs of suit, and defendant brings its petition in error in this court.
“ The fact that persons were upon the track or yard of the defendant before, was no license to the plaintiff to be there, and was no justification, for the plaintiff being there;*53 and he was guilty of negligence for being on the track, if the jury find that he was on the track.”
As without dispute the plaintiff was on the track, when struck by the train, of course the jury could not find otherwise than that he was guilty of negligence. It is unnecessary to inquire whether this be good law or not, for surely it is a proposition of which the railroad company has no cause of complaint. It is enough now that it serves to indicate upon what the 13th finding was based. As it was an open question whether the place of the accident was a public crossing, it can hardly be that the court intended' to say to the jury, that, though this were a public crossing, the presence of the plaintiff on the track was such ordinary contributory negligence as, notwithstanding the gross negligence of the railroad company, would defeat a recovery. It seems to us therefore that the jury-intended by this 13th finding only such slight negligence as does not bar the right to compensation.
We have outlined, in considering the first question, the conduct of the company. A similar outline is proper as to that of the plaintiff. It appears that there is a space south of the old depot in Leavenworth about 1,000 feet in length, and 200 feet in width, shut in between the Missouri river on the east, and a steep bluff on the west. At the lower end of this space was, at the time of this injury, and had been for years, a grist-mill built against the bluff, and also at times the landing place of the ferry-boat. The boat changed the landing-place from time to time to accommodate itself to the different changes of the water, so that only part of the time did it land at or near this space. Over this space the Missouri Pacific Railroad and this defendant had constructed four or five tracks, which were used in- the making-up of the trains, the tracks of the Missouri Pacific Road being next the river, and those of the defendant near the bluff. At the northwest corner of this space two streets came together, and prior to any occupation by the railroad companies the city had passed an ordinance for the opening of a street from the junction of these streets southward over this ground. But nothing more had been done toward securing the appropriation of the ground for street purposes. Both before and sub
Other objections are made by the learned counsel for plaintiff in error, but they are of minor importance. The record is voluminous, and many exceptions were taken. But this case has been once before to this court, and a judgment in favor of the plaintiff reversed; (K. P. Rly. Co. v. Pointer, 9 Kas., 620;) and only such errors as are clearly prejudicial to the substantial rights of the plaintiff in error should be regarded.
The judgment will be affirmed.
Rehearing
MOTION FOE BEHEABING.
The foregoing opinion was filed December 22d, 1874. On the 2d of January, 1875, the Railway Company filed a motion for reargument and review. Said motion was heard at the January Term 1875 of this court, and was argued orally by J. P. Usher and T. A. Hurd, on the part of the Railway Company. No brief on file on part of defendant in error, in opposition to the motion.
J. P. Usher, and T. A. Hurd, in support of the motion:
It seems to us, that this court has mistaken and misapprehended the facts in this case, as shown by the record. The decision affirming the judgment upon the ground that the “general finding” of the jury gave character to, limited and controlled the special findings of facts, has operated a com
Again, this court erroneously assumed and held that there was a street-crossing where this accident happened. The verdict is contradictory on this subject; the 7th and 21st findings are in conflict. All the evidence tending to prove a right in the public to pass there was objected to, which objections have not been passed upon by this court, but it is taken for granted and decided that Pointer was injured at a public crossing, which is not true.
The decision of this court in this cause upon the question of coitributory negligence is so great a departure from the established rules of law, as to deprive corporate and other unpopular suitors of all protection by the courts.
With profound respect for the court, we are compelled to say that we believe a great mistake has been made, and injustice done. Upon the trial of the cause in the court below, and at its very commencement, a special verdict was demanded. This court has often decided that the right to such verdict could not be denied, and in the case of National Bank v. Peck, 8 Kansas, 661, the office of a special verdict is remarkably well stated. The verdict in
"We insist that if such general verdict is to make any figure in this case now, we were entitled to a new trial, because it was allowed to be returned in the special verdict. We exclaim, What kind of justice is it that allows a jury to return a general verdict against the law, and our sturdy opposition from first to last, and that same verdict invoked to sustain a judgment! We cannot believe the court fully comprehended, and we fain believe it must have overlooked that we strove to purge from the verdict this improper finding. We cannot avoid asking, Was this general finding justified by the law? Did the defendant company object and protest against it? Were its objections disregarded? Did the trial court err in doing so ? And would this court, upon the verdict, if shorn of that illegal general verdict, have pronounced the judgment it has? In all sincerity and fairness, must not all these inquiries be answered in favor of the railroad company ? We have shown that the general verdict could not be resorted to to abate from the force and meaning of the other parts of the verdict, but we ought not to be put to that argument, because in all fairness and justice that clause of general finding should have been struck from the record, and if the plaintiff Pointer claimed that the company was guilty of great negligence, and he of but slight, it was his duty to ascertain from the jury whether they so intended to find, and that in direct words, leaving nothing to inference. There is no am
But we think the law respecting special verdicts is, that the jury should find facts only, leaving the court to apply the law: That mixed questions of law and fact cannot be submitted to the jury: That the question of negligence being a mixed question of law and fact, the trial court had no right to submit that question to the jury in this case. If the jury make findings upon questions of law, or upon mixed questions of law and fact, we insist that it is the duty of the trial court to strike them out, and of this court to disregard them. We understand the 12th, 13th, and last findings, to be questions of this character, and should not have been submitted to the jury, and should have been stricken from the verdict. Our first instruction asked was, that the jury be directed to' find facts only. The first innovation upon our theory of a special verdict, of which we have knowledge, was upon the trial of this cause, before appealed to this court. On that trial, and on the last, we insisted that the jury should be directed to find facts only. We insist that the 12th, 13th, and last findings have no right to be in this verdict. If the jury can find these mixed questions, then the judge has one duty only to' perform, and that, to determine from the facts found, whether the jury found the law properly on these mixed questions.
If the three findings last mentioned be expunged, there can be no question but that the defendant below is entitled to
When this cause was first in this court, we were notified that if Pointer was on a street public either in law or in fact, when the accident occurred, he would not be a trespasser upon the right of the railway company, so as to relieve the company from reasonable and ordinary care to avoid injuring Mm. This court now starts out in its opinion by asserting that the train was started backwards “ over a public crossing.” We are bound to say there is no warrant for this statement, and we have a right to the judgment of the court whether the evidence, (which necessarily had to be of record in order to establish that this was a public crossing,) did establish such fact. We objected to every particle of it from first to last. The only evidence offered on that point was the city ordinance. It is not pretended that that ordinance gave the public any right to enter upon the premises. After the plaintiff rested his case without any testimony of assessment or payment of damages, the defendant moved to strike the copy of the ordinance from the evidence, and again, by 3d instruction, that the jury should disregard the ordinance. The court erred in all its rulings and decisions respecting the ordinance. It left the jury to give some effect to the ordinance, and made the conflict in the findings, there being no evidence that there was any such street in law. Was there a street in fact? The evidence that was offered by the plaintiff to establish that point, did not prove that the public had ever passed where this man was injured until after it was graded by the Railroad Company. It was in fact impassable, and whoever
The opinion of the court was delivered by
Brewer, J.: On a motion like this I am not ordinarily inclined to write an opinion. Nor do I now intend to go-over the ground traversed in the opinion already written. I merely seek to guard against certain conclusions which counsel erroneously draw from that opinion. And first: The court has not receded from the proposition laid down in the case of The L. L. & G. Rld. Co. v. Rice, 10 Kas., 426, that a party is entitled to a special verdict, (though upon the law as it now stands, quaere: see laws 1874, ch. 91, page 140.) Nor has it questioned the doctrine that special matter lawfully found prevails over a general verdict. Counsel contend that the last finding, which is in the form of a general verdict, was unlawfully returned by the jury, and received by the court; that it ought to have been stricken out, or amended, on the motion which was made; and that with that out, the conclusion of this court would have been.different. I am inclined to think (and as'Judge Valentine contemplates writing out his views, I am here expressing my own opinion without consultation with the other Justices,) that the motion should have been sustained, though the statement prepared by •counsel, and submitted to the jury, as the form of a special verdict, is very different from that contemplated by the statute,
The other question, as to whether the verdict, as we con•strued it, could be upheld, was of no less difficulty. We did not in the opinion, and do not now, indorse the doctrine of “ comparative negligence,” nor does it seem to us correct that a party guilty of ordinary negligence can recover simply because the other party was guilty of greater negligence. The rule as we understand it, was laid down in Sawyer v. Sauer, 10 Kas., 466. In reference to the cases in which it is proper to submit to a jury the question of negligence, I can do no better than quote from the language of Mr. Justice Hunt, in Railroad Co. v. Stout, 17 Wall., 663. After stating cases on either side in which it is proper to declare as a matter of law that it is or is not negligence, he says: “ But these are extreme cases. The range between them is almost infinite in variety and extent. It is in relation to the intermediate cases that the opposite rule prevails. Upon the facts proven in such cases, it is a matter of judgment and discretion, of sound inference, what is the deduction from the undisputed facts.