86 Kan. 938 | Kan. | 1912
The opinion of the court was delivered by
W. F. Ratliff recovered a judgment against the Union Pacific Railroad Company on account of cattle killed by one of its engines, and the defendant appeals. The claim of liability was based upon the defective construction of a cattle guard, over which the animals were found to have gone upon the track from the highway. The jury found specifically that the cattle guard was not a proper one; that it was insufficient in every respect in which it differed from the cattle guards used by another company. But they also returned a negative answer to the question, “Is there any cattle guard shown by the evidence that would have prevented plaintiff’s cattle going upon defendant’s right of way?” No motion for a new trial was filed by either party. The defendant asked the court to render judgment in its favor upon the special findings.
In order for the plaintiff to recover it was necessary for him to establish not only that the cattle guard was insufficient, but that the cattle were killed because of its insufficiency. If a properly constructed cattle guard would not have kept the cattle from getting upon the right of way, then there was no connection between the defective guard and the death of the cattle. The answer to the question quoted says explicitly that such was the case. Therefore there is an evident conflict between the general verdict and the special findings.
Manifestly the trial court believed that what the jury meant was not that these particular cattle would have got upon the track in spite of any cattle guard that
The special findings must be given a construction consistent with the general verdict if that is reasonably possible. (Ahlstrom v. Kansas Milling Co., 85 Kan. 548, 118 Pac. 57.) Here, however, the language of the finding in question seems too explicit to admit of the construction which the court obviously gave it. Nevertheless we do not think a judgment should have been rendered for the defendant. The trial court was clearly of the opinion that the jury did not intend the literal import of their words — that they were under a misapprehension as to the meaning of the question. In that situation a judgment for the defendant upon the finding would not work substantial justice. Except for the belief of the trial court, which this court is unable to share, that the finding could be so construed as to be consistent with the general verdict, a motion for a new trial would undoubtedly have been filed and sustained. The powers of the supreme court in disposing of cases on appeal have been broadened since Railway Co. v. Osburn, 79 Kan. 348, 100 Pac. 473, was decided. The present code provides that “in any case pending before it the [supreme] court shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial, court.”' (Civ. Code, §581.) Although this provision has es
The judgment is therefore reversed and a new trial ordered.
