30 Kan. 465 | Kan. | 1883
The opinion of the court was delivered by
The plaintiff was a brakeman in the employ of defendant. While so employed, and endeavoring to prepare for a coupling between two cars, he received personal injuries, for which he brought this action. The case was tried by a jury. The verdict and judgment were for the plaintiff, and defendant alleges error. The testimony was not preserved, so that the case comes before us upon the pleadings, the answers to particular questions, the general verdict, and the judgment. The questions presented arrange themselves under two classes: First, do the answers to the questions show that the defendant was not guilty of the specific acts of negligence alleged in the petition? Second, are they so inconsistent with the general verdict as to overthrow it?
Perhaps a general statement of the circumstances attending the injury will help to a solution of the questions involved. The plaintiff was acting as brakeman on a passenger train, consisting of engine and tender, baggage car, and two coaches. This train ran eastward until it reached the Bepiiblican river, and there discharged its passengers. It then backed westward two miles to Ames station, where was a switch and side track, at which place the position of the coaches and baggage car was to be changed, and the train made up for moving westward in the morning. The front coach and the baggage car had a Miller coupling, while the rear coach had a link-and-pin coupling. The crew consisted of the engineer
Plaintiff charged negligence in these ways: that he, having charge of the coupling, signaled the engineer to stop; that the engineer obeyed the signal, and stopped; that after stopping he went to remove the link and pin, and that while so doing, the engineer, without any signal from him, started his engine, backed the coach against the car, and crushed him; that thus the injury resulted from the negligence of the engineer in starting his engine without waiting a signal from plaintiff. He also charged that Gould, the baggageman and front brakeman, stood on the front end of the passenger coach, instead of the rear and coupling end as it was his duty to do, and from the front end of this coach negligently signaled the engineer to back up, and in pursuance thereof the engineer backed, causing the injury complained of.
Negligence on the part of two employés was therefore charged: first, negligence in the engineer in not obeying plaintiff’s signals; and second, negligence on the part of Gould in giving improper signals. It would seem from
Thus far our conclusions have been reached with little embarrassment. But whether the answers do not show contributory negligence on the part of plaintiff, and thus antagonize and overthrow the general verdict, .is a matter of gravest doubt. There are certainly some answers which, taken by themselves, tend very strongly to show contributory negligence, while there are other answers which also tend strongly to show that the plaintiff acted with ordinary prudence.
We quote the following questions and answers for the sake of illustration — the first two propounded by plaintiff, and the others by defendant:
“26. Was the plaintiff at said time engaged in the line of his duty as brakeman on defendant’s said train, in the cus*470 tomary and ordinary manner for the performance of such duties under the circumstances then existing? A. Yes.
“27. Wa3 the plaintiff at the said time undertaking to perform his duty' as defendant’s brakeman in the usual and ordinary manner under the circumstances then existing? A. Yes.
“ 37. Is it usual, customary, or safe for a brakeman to go in between two coaches about to be coupled together with Miller cpuplings ? A. No.
“56. Is it dangerous and reckless for a person to go in between two cars having Miller couplings that are to be coupled together? A. Yes-.
“ 57. Did the plaintiff then know that it was dangerous and reckless for a person to go in between two cars having Miller couplings when about to be coupled together? A. Yes.
“ 73. At said time did said plaintiff know that it was not usual and customary, for a brakeman to go in between two cars about to be coupled together with Miller couplings? A. Yes.
“74. Did he know at said time that a brakeman was not expected or required under any circumstances to go in between two cars having Miller couplings as they were coming together for the purpose of being coupled? A. Yes.
“92. Was said moving coach proceeding at a slow rate of speed, not exceeding two miles per hour, and sufficiently slow to permit said Holley to step on the steps of said car at the rear end thereof, and when it arrived near to where said mail- and-baggage car was standing, for him to bend down on said platform so that he could reach said link and pin with his hand? A. Yes.
“127. At said time could not plaintiff easily have stepped up onto the platform of said moving coach and thus avoid any risk or danger to himself? A. Yes.
“ 90. Could plaintiff, with perfect safety to himself and in the discharge of his duties as brakeman, properly have gone onto the rear platform of the moving coach instead of between said mail car and said moving coach? A. Yes.
“72. After said plaintiff claims to have given the signal to the engineer to stop, ought he, in the exercise of reasonable and ordinary care, under any circumstances, to have gone in between said mail-and-baggage car and said coach until he knew that said engineer had seen such signal and knew for what purpose it was given ? A. No.”
We think it would be difficult, if not impossible, to fully harmonize these various answers. It may be said, as a possible explanation of the answer to the last question, that as appears from other answers, after plaintiff had signaled, the coach apparently stopped, and that such apparent stop was •evidence to him that the engineer had seen and was obeying his signal. And in reference to some of the other answers, it may be that the jury thought only of the coming together of two coaches with the Miller couplings, and when in neither was there link or pin or anything to prevent them coupling ■themselves. And yet such explanation is not satisfactory :as to some of the answers, as for instance that to question No. 74.
Now under these circumstances, what is the duty of this •court? The trial court has sustained the general verdict, thereby affirming that the answers are not in its judgment inconsistent therewith. It heard the testimony, the arguments of counsel, perceived the drift of the trial, and understood better than we can the import of the questions and answers. From the whole scope of the trial, it knew, as we •cannot, how the jury understood the questions, and the full intent and meaning of their answers. It will be borne in mind that the answers are not directly contradictory; that is, there is no direct affirmation in one answer, with as direct a negation in another. They are inconsistent and contradictory, ■only in the sense that their tendency and import seem to be in opposite directions. We all know how the same language often conveys different meanings to different minds, and how
With these general observations, we remark that we.ought to sustain the verdict if it can be fairly done, and ought not to strain a point to harmonize the various answers for the-sake of making them as a whole inconsistent with the verdict. Doubtless cases may arise, as that of The Railroad Co. v. Maher, 23 Kas. 163, in which it appears not only that the-answers are inconsistent, but also that the jury evidently misconstrued some writing, or misconceived the force of some-testimony, in which it would be our duty to set aside the-verdict. So also other cases may be found, like that of Shoemaker v. Railway Co., ante, p. 359, in which the answers are-so directly contradictory or so confusing as to indicate that the jury gave no intelligent attention to the testimony or the-questions, and in all such cases a new trial should be granted. But this case is entirely different. Evidently the jury made-an honest effort to understand the case, and attempted full and honest answers to the questions. We cannot see that they misconceived the import of. any testimony, and the answers do not, as a whole, so plainly and directly disclose a. state of facts inconsistent with the verdict as.to justify us in disregarding it.
Before closing this opinion we may remark that one cause of the inconsistencies between the answers is, the multitude of questions and the manner in which they are presented. On the part of the plaintiff some twenty-nine questions were propounded, and on the part of the defendant one hundred and thirty-four. These were not arranged in any natural order, but jump abruptly from one matter to another — often refer to trivial and unimportant things, and seem more like the cross-examination of a witness than the submission of questions to a jury. Now this matter of submitting particular questions to a jury is a valuable right to a party, and sub-serves an important part in the elucidation of the truth, and the proper application of the law to the facts; but when