31 Kan. 132 | Kan. | 1883
The opinion of the court was delivered by
This was an action brought by Eeynolds against the railroad company, to recover damages for injuries to certain cattle belonging to him. The bill of particulars alleged, among other things, that the animals injured, casually
On the part of the railroad company, evidence was offered tending to show that the whistle was sounded as prescribed by the statute; that the cattle came suddenly upon the defendant’s road, and jumped in front of the engine so close thereto that by the exercise of even great care on the part of the engineer and the other employés of the company, they could not prevent the train from running over them; and that they were injured by unavoidable accident.
Various questions are presented to us for determination; but while we shall refer to all of them, we shall do so as briefly as possible, as most of them are settled by prior adjudications of this court.
I. The first complaint is, that as the bill of particulars did not allege any non-compliance with the provisions of § 60, ch. 23, Comp. Laws of 1879, the court erred in permitting evidence to be introduced to prove the whistle attached to the engine was not sounded as required by the statute. This is not material, because the findings of the jury show that
II. The railroad company requested the court to direct the jury to find upon certain particular questions of fact. The court refused to submit those asked for. All of these but one (to which we will refer hereafter) were inquiries as to the exercise of the care taken by Reynolds to prevent his cattle from being injured, the purpose of the inquiries being to establish by the special findings, if possible, that Reynolds was guilty of contributory negligence in turning the cattle out to graze, and in permitting them to run at large. While the particular questions asked for were refused, yet others, embracing the conduct of Reynolds concerning his care of the cattle, were submitted to the jury. These were as follows :
“Was it at a public crossing over the defendant’s track and right-of-way where the accident occurred and the stock were injured? A. Yes.
“Did the plaintiff, at the date of the injury, reside in close proximity to the railroad track and in full view thereof, and had he resided there for several years and knew how the trains were run and operated thereon? A. Yes.
“Was the plaintiff, at the time of the injury, and had he been for the month prior thereto, in the habit of turning his cattle out into the highway which crossed the railroad track, leaving them at liberty to stray where they saw fit? A. Yes.
“Did not the defendant’s train of cars, at the time of the injury, and for several months prior to the injury, pass in plain view of the plaintiff’s house, passing the crossing? — and did not the plaintiff with the knowledge thereof, on the day of the accident turn his cattle out into the public highway, leaving them at liberty to stray on the defendant’s track and on said crossing ? A. Yes.
“At the time the plaintiff turned his cattle out, on the morning of the accident, was there anything to prevent them from wandering or straying upon the defendant’s track and on the said public crossing where trains of cars were passing and repassing? A. No.”
Reynolds occupied forty acres of land, and his house was
III. One of the questions which the court refused to submit, was the following: “If the jury should find that the defendant was negligent, state fully in what such negligence consisted.” Our first impression was that this question was pertinent, and should have been submitted. A more careful examination, however, has convinced us that while the court in its discretion might have admitted this question to the jury, leaving the jury to state the particular facts constituting the negligence, yet it was not error in refusing so to do. Under § 286 of the code, the jury are not required to do anything except to render a general verdict, and in addition thereto to make findings upon such particular questions of fact as are stated in writing by one or both of the parties, and as requested by such party or parties. (Foster v. Turner,. ante, p. 58.) Where in the nature of things a jury can point out the negligence upon which their verdict is based, the court, if requested, may in its discretion very properly direct the jury to fix the negligence, and the jury should do so. If it is impossible to do this, upon the evidence, the failure to fix the negligence will not defeat a recovery; but as the court, under the statute, is not bound to submit such general questions of fact to the jury as will require them to find a special verdict, or compel them to state at length or in detail new facts not particularly mentioned in the general question, no error is committed when the court refuses to submit'such a general question. (Foster v. Turner, supra.)
Y. Finally, the counsel for the railroad company contend that there was no evidence introduced tending to prove negligence against the company. They say that the verdict and findings of the jury are contrary to and against the evidence. The evidence tending to establish negligence on the part of the railroad company is not very clear or positive, but we think there was sufficient presented to support the verdict of the jury. It is apparent that the whistle on the engine was sounded before. reaching the crossing, as required by the statute; but there was some evidence offered which the jury might properly regard as tending to prove that the employes in charge of the engine, after having seen the cattle near the track, were not sufficiently attentive in the discharge of their duties.
The engineer testified that it was the duty of the fireman, as well as his own, to look out for anything on the track; that he first saw the cattle half a mile away, grazing along
If the fireman had kept a proper lookout after the engineer ■blew the whistle, he ought to have seen that the cattle were moving toward the crossing, and if he had given this information to the engineer, as it was his duty to do, the engineer would have known that the cattle were approaching the track, and would not have tried to pass them, as he was attempting to do, without alarming them. Upon seeing the cattle forty or fifty feet from the track, the employés of the railroad company in charge of the engine and train were not bound to stop the train; but they ought, for the safety of the passengers and others upon the train, as well as to prevent the infliction of unnecessary damage to the cattle, to have used ordinary prudence to ascertain whether the cattle were likely to attempt to cross the track upon the public crossing in front of the engine; and if by keeping an outlook they could have ascertained this, it should have been done, and then they should have used ordinary care and diligence to prevent the cattle, if they were about to cross the track, from being run over.
The jury were not satisfied that the cattle came suddenly on the track just before being struck. (Railway Co. v. Wilson, supra.)
The judgment of the district court will be affirmed.