60 Kan. 113 | Kan. | 1899
The opinion of the court was delivered by
This is the second time that we have been called upon to review the proceedings in the trial court in this case. (Mo. Pac. Rly. Co. v. Moffatt, 56 Kan. 667, 44 Pac. 607.) On the first review it was held that the averments of the petition were not sufficiently specific to justify the admission of proof of the negligence of the company beyond its failure to give proper signals and due warning of the approach of its trains, and because the trial court admitted testimony and submitted grounds of negligence to the jury not definitely pleaded, the case for that and other reasons was remanded for a new trial. After it was so remanded the plaintiffs below amended their petition by alleging that the railway company was negligent in failing to give signals other than those required by the statute, and in failing to have a gate, a flagman or an electrical alarm at the highway crossing where Andrew C. Moffatt was struck and killed by a locomotive attached to one of its passenger-trains. Several years intervened between the filing of the original petition and
The next exception was to the allowance of a new next-friend to appear for the three infant plaintiffs.
We cannot assume that he was guilty of contributory negligence. Aside from the instinct of self-preservation, there is proof that he was a sober, careful man, and had previously exercised due care for his safety on approaching the same crossing. Who can say that he did not stop, look and listen before going upon the crossing, or that he failed to exercise that degree of care which the conditions and circumstances required? He was a middle-aged man, with good health and the instinct of self-preservation strong within him, sober and exceedingly careful, and these facts and circumstances are not without weight in repelling any inference of negligence that might arise from the mere fact that he was upon the track and was struck by the locomotive. The plaintiffs are not required to show the absence of negligence, but before it can avoid the consequences of its negligence the company must show that Moffatt’s injury and death were due to his own negligence. The claimed mismanagement of the team is of but little importance, since it is clear from the testimony that there was not sufficient time for him to drive the team off the track after the peril was discovered. The general verdict in effect finds that he was not negligent, and we discover nothing in the special findings inconsistent with the general verdict.
The writer is inclined to the view that the evidence is not sufficient as a basis on which to compute pecuniary loss. No evidence was given as to the amount which Moffatt earned or had earned, nor as to the amount of pecuniary aid or benefit which it would have been possible for him to give to his children in the future. The jury may very well consider his character and condition and his capacity for earning money and his expectancy of life, but some evidence should certainly be given of the profits of labor of the deceased, and what in all probability he might earn for the future support of his wife and children. While much must be left'to the discretion and judgment of the jury, it is not unlimited; they must be guided by the fixed rules of law, and they cannot award substantial damages without proof of the extent and character of the pecuniary loss suffered. What his income was,-what it had been, how much he was capable of earning, how much he had been in the habit of contributing to his children, and how much he would be able to contribute in the future, were facts which could have been easily proved, and which would have afforded a basis for the verdict rendered. No evidence of this kind was offered, and not even the expectancy of life was shown. In the absence of proof the jury were left to guess at or speculate upon the pecuniary value of Moffatt's life, and although they had no real basis for determining the extent of the plaintiffs' loss, they found a verdict for $5000. In the absence of proof .of the extent,of the pecuniary loss, the jury can allow nominal damages only.
It is finally claimed that some of the findings are not supported by the evidence, and it appears that two of the answers are not strictly accurate. In the view we take of the case, however, they are not deemed to be very material, and when the findings of the jury are considered together they do not betray any passion or prejudice, nor such a wilful disregard of the evidence as would warrant the overthrow of the verdict. The judgment will be affirmed.