44 Kan. 207 | Kan. | 1890
Opinion by
September 11, 1885, Tillman P. Hinshaw was killed by the cars at Wet more station on the Missouri Pacific Railway, in Nemaha county, Kansas. M. P. M. Cassity was afterward, at Washington county, Kansas, the domicile of said Hinshaw at the time of his death, appointed administrator of the estate of said Tillman P. Hinshaw, deceased. Cassity, as such administrator, on the 3d day of June, 1887, commenced this action in the district court of Nemaha county to recover damages for the killing of said Hinshaw, for the benefit of Laura P. Hinshaw and Florence Leah Hinshaw, widow and daughter, and next of kin of said Tillman P. Hinshaw, deceased. Amount claimed, $10,000.
“16. The jury are instructed that if they find from the evidence that the said Hinshaw was guilty of ordinary negligence, which contributed directly, in whole or in part, to the death of said Hinshaw, then the plaintiff cannot recover herein, even though the defendant was guilty of negligence in permitting said track to become and remain out of repair.”
This instruction we think correctly states the law, and should have been given, either as asked by the defendant below, or in the general instructions given by the court. An examination of the instructions given by the court fails to disclose anything that we think can take the place of the instruction refused and excuse the court from giving such instruction. The eighth instruction as given by the court comes nearer stating the law of contributory negligence than any other instruction given, and we think this instruction fails to give a complete statement of the law upon that question, and therefore the instruction asked by the defendant below, which is a
We also think that in the absence of any instruction clearly setting forth the law of contributory negligence, instruction 11 as given by the court is misleading, or there is danger of its being so construed by the jury as to mislead them. The jury are told in this instruction that before the plaintiff can recover, three things must be found, reciting them. In the absence of any well-defined instruction upon the subject of contributory negligence, the jury may have construed this instruction to mean that if they found from the evidence in the case the three things so numbered and recited in this instruction 11, they should then find for the plaintiff anyway, without any regard to the question of contributory negligence.
Again, we find that a number of the special findings of the jury are not only unsupported by any evidence in the case, but are squarely against all the evidence in the case upon the questions to which they relate. All the evidence in the case upon that question shows that the cars to be uncoupled were either the first and second, or the third and fourth, while the jury find the fourth and fifth cars were the ones to be uncoupled. The jury find that Hinshaw was head brakeman on the train, and then in the 107th finding say his duties did not require him to be on the cars near the engine, especially at stations where cars were to be cut out. And yet all the evidence in the case relating to his duties shows that they required him to be on the front car to receive from the conductor or rear brakeman signals for the management of the train and transmit them to the engineer, and to handle the brake to aid the engineer in stopping the train.
The jury were asked in question 77: “During said time, from September 1 to the date of his death, did he frequently, in the daytime, pass over said track and over said culvert in the discharge of the duties as brakeman?” and answered, “No”; while the undisputed evidence shows that he did pass
In findings 44 and 45 the jury say that Hinshaw was required in the proper discharge of his duties to go in between the cars while in motion to uncouple them, while all the evidence in the case shows he was not required to go in between the cars to uncouple them while moving, nor for any other purpose. The same jury say in finding 86 that there were no general orders of the company which required Hinshaw in his capacity of brakeman to go in between the cars when they were moving, and in finding 90 they say Hinshaw did not act in obedience to any direction of the conductor of the train in going in between the cars to uncouple them. In finding 36 they say that orders were given Hinshaw to uncouple said cars, while all the evidence on the point negatives such a conclusion.
The defendant below saved many exceptions to the rulings of the trial court refusing to admit evidence offered by the said defendant, and has assigned as error such rulings. While we think it is unnecessary to say whether there is reversible error in such rulings, we desire to say we think the rule of evidence was held very rigid against the defendant all the way through the trial.
There is one other matter that we wish to call attention to:
“Under chapter 91 of the laws of 1874, either party may request of the court to submit to the jury a question as to a particular fact, and if the fact be involved in the issues, and material to the controversy, the court has no discretion, but must submit the question and require the jury to answer.”
Again, in 21 Kas. 484. In 25 Kas. 198, the court says: “ It is generally error for the trial court to refuse to submit to the jury questions of fact material to the case and based upon the evidence.” In 25 Kas. 243, the court says: “A party has a right in a jury trial to have answers returned, to specific questions as to material facts”; but the court adds: “This right is not one which enables him to determine what are material facts and what questions must be answered. He may present any number of questions for submission, as any number of instructions, but it is the duty of the court to determine what in the one case shall be submitted, as in the other what shall be given.” In 39 Kas. 204, another phase of this question is discussed.
An examination of all these authorities discloses that the law upon this subject is settled by this court as follows: First, a party has a right to have special questions submitted to a jury where the questions are material under the is
We recommend that this case be reversed, and remanded for a new trial.
By the Court: It is so ordered.