50 Kan. 401 | Kan. | 1893
The opinion of the court was delivered by
The Parkinson Sugar Company is, and has been for several years last past, a corporation organized and engaged in the manufacture of sugar and syrup from sorghum cane, at its factory near the city of Fort Scott, in this state. On the south side of its factory building, and attached thereto, the company has a trough or carrier, through which runs an endless chain, used to convey the stalks of sorghum cane into the building, to be subjected to the process of manufacture. This carrier extends south from the building, and is about 150 feet in length. As the sorghum cane is hauled in from the farm and delivered to the sugar company, it is thrown off in a long pile, parallel with, on the west side of, and a few feet from, this carrier. Immediately adjoining the foundation wall under the south side of the building, and about four feet west of the door leading into the building, there is a small cistern, about three feet in diameter, and four and a half feet in depth, constructed and used by the company to receive, and into which is discharged, steam and waste boiling water from the boilers and engines in the factory. On the 10th day of October, 1888, Jesse William Riley, then between 17 and 18 years of age, became an employé of the sugar company, and from that time until the early morning of the 20th of the same month continued to work for the company, principally in carrying the stalks of cane from the long pile and placing them in the carrier. While at work for the company, on the outside of its factory, about 4 o’clock in the morning of October 20, becoming very cold, he asked permission of Wagner, the foreman of the work in. which Riley was engaged, to go into the factory for the purpose of warming himself. Wagner gave the desired permission, and, while attempting to go into the door on the south side of the building, he fell into the uncovered cistern containing the waste boiling water, and was burned and scalded. Subse
It is ruled that when an employé enters the service of a master he assumes all ordinary hazards incident to such service, and also other perils of which he has knowledge. But,
The serious matter, however, which confronts u's in this case, is the special findings of the jury. The trial court charged the jury that if they found for the plaintiff below, there could not be any recovery for loss of time, as young Riley was a minor, nor for his board, care, nursing, or medical expenses or attendance. The jury specially found that they allowed nothing for loss of time, medical attendance, expenses for nursing and sickness, physical pain, mental suffering, permanent injury, or exemplary damages; yet they specially found “$1,000 as damages for injuries received.” When the special finding of facts is inconsistent with the general verdict, the former controls the latter. (Civil Code, § 287; Railroad Co. v. Maher, 23 Kas. 163.) If any reasonable basis or ground existed upon which the jury could give $1,000 damages for injuries received, in view of the other special findings, it might be said that the special findings were not inconsistent with the general verdict; but the
Counsel for Riley criticise the special questions submitted by the trial court to the jury, and state that they objected to them. No motion for a new trial was made on the part of Riley, and no cross-petition is filed in this court; therefore, we cannot examine at any length, for any good purpose, the criticisms upon the questions submitted. This much, however, may be properly said: The trial court should have refused to submit questions to the jury which had no evidence to warrant them, or which related to points not in dispute, or upon elements of damages wholly withdrawn from the jury by the charge. Therefore, the questions about loss of time, expenses for medical attendance and nursing, ought never to have gone to the jury. These unnecessary questions undoubtedly confused and troubled the jury, when they had been specially charged not to allow any damages implied thereby. Being thus confused and possibly misled, it is not strange that the jury answered inconsistently. The trial court ought to have had the special findings corrected or explained before the jury were discharged. When physical pain is established, such pain and mental suffering are so clo3ely connected that a single finding as to the damages allowed therefor is all that is necessary. This court said, in Morrow v. Comm’rs of Saline Co., 21 Kas. 484, that “the main object of special questions is to bring out the various facts separately, in order to enable the court to apply the law accurately, and to guard against any misapplication of the law by the jury.”
(See, also, Wyandotte v. Gibson, 25 Kas. 236; Foster v. Turner, 31 id. 58; Fowler v. Hoffman, 31 Mich. 215; Davis v. Farmington, 42 Wis. 425.)
The special findings of the jury being in conflict with each other and also inconsistent with the general verdict, no judg