39 Kan. 204 | Kan. | 1888
This was an action commenced on the 13th day of August, 1885, in the superior court of Shawnee county, by Emily Jacobs, as administratrix of the estate of James Jacobs, deceased, against the Leavenworth Topeka & Southwestern Railway Company, to recover damages for the death of the intestate, caused by the negligence and carelessness of the railway company. It was tried by a jury at the January term, 1886, which returned a verdict in favor of the plaintiff below for $575, and the costs of suit. The jury returned answers to special interrogatories submitted by the court on the request of the railway company. There was a motion made before the jury were discharged, to require more specific- and definite answers to be made to certain of these special questions, that was overruled and excepted to. A motion for judgment on the special findings, and a motion for a new trial, were both overruled, and excepted to by the railway company, and the case is brought here for review. The principal errors assigned are, as to certain instructions requested and refused, some that were given, and the rulings in the various motions above recited. The facts are that the deceased, James Jacobs, a bright, active young man, about seventeen years of age, sometime in the month of May, 1884, engaged to work for the railway company, and was employed in shoveling dirt on a construction train, at a point about seven miles southwest of the city of Leavenworth. He commenced to work sometime during Tuesday, and on the following Thursday, about four o’clock in the afternoon, was killed. At the time of his death he was riding on a flat car about one-third full of dirt, that was moving at the rate of about twelve miles an hour; he was sitting on the car with his legs hanging over the side of the car, and as the car was in the act of passing a post supporting the cattle-guard fence, he raised his legs to throw them over the post, but his heels struck the post, threw him around and off from the car, he falling under the wheels of the car, and being instantly killed. The construction train
The court submitted a series of questions embodying, pre
Of course the court committed error in instructing the jury that they might answer the special questions by simply saying “Don’t know,” or “Cannot answer.” ( A. T. & S. F. Rld. Co. v. Cone, 37 Kas. 567, and authorities cited.)
The practice was particularly objectionable in this case, as it is a very close question on the facts disclosed by this trial as to the liability of the railway company.
It is recommended that the judgment be reversed, and a new trial awarded.
By the Court: It is so ordered.