| Kan. | Jul 15, 1894
The opinion of the court was delivered by
A single question only needs to be considered, as that, in the opinion of a majority of the court, is decisive of the case. Is the specific negligence found by the jury
The evidence shows that a gang of hands working under the section foreman commenced repairing the track in front of the depot platform in the afternoon before the accident occurred, by taking out old cross-ties and putting in new ones. The workmen commenced their work at the switch. At the time of the accident they were working about 40 feet from the head block, and had removed the dirt from between several of the ties, and one long, new tie was placed partly under the track, leaving one end projecting and raised above the surface of the ground. The plaintiff got upon the brake beam of a moving car, for the purpose of uncoupling it, and in jumping off on to the ground for the purpose of giving a signal to the engineer, he caught his foot on the projecting tie, stumbled, and, as he says, stepped forward into a hole, and the car hit him and knocked him into a hole where they had taken a tie out. He fell with his left arm across the rail, and the car wheels ran over it and cut it off. The plaintiff’s brother, who was yard master in charge of switching operations, testified that he had no knowledge or notice that repairs were being made by the section foreman and men working under him. No signal flags indicating that repairs were being made were placed along the track. The evidence shows that it was not customary in that yard to use such signal flags to indicate where repairs were being made in the
It appears that, shortly before the injury, the plaintiff had thrown the switch near where the repairs were being made, but he testifies that he did not see the men at work, and did not know they were there. On the part of the defendant, there was testimony tending to show that the plaintiff had passed over that part of the track where the section men were at work, in full view of them. This, however, was denied by. the plaintiff and yard master. The particular negligence attributed to the defendant was in failing to warn the men engaged in switching of the disturbed condition of the track. While it is claimed by the plaintiff that the manner of making the repairs was improper, in that more ties were removed at a time than was necessary or proper in making repairs in a yard where engines and cars were frequently passing, the jury do not seem to have found that there was any negligence in that respect. The culpability of the defendant, if any, rests, then, entirely on the facts that the company proceeded through its section force to dig away the dirt and place new ties in such manner as to change and disturb the surface of the ground in the yard where the plaintiff was accustomed to work, without giving him any notice thereof.
The specific charge in the petition is, that no signal flags were placed to warn him of danger. There is no claim by either party that signal flags were, in fact, put out. The petition does not specifically charge, either that it was the duty of the company or of the section foreman to notify the yard master of the intended repairs, nor that no such notice was given. The jury, however, find that the negligence of the defendant consisted in the failure to give such notice. The majority of the court think this a variance compelling a reversal of the judgment; that the proof and findings must correspond with the pleadings, and that the allegation of negligence in one particular does not warrant a recovery on proof of negligence in another and different matter. The view of the writer is, that the variance is not such as com
There is nothing in the special findings directly negativing negligence in other respects, and it seems a rather strained construction to hold that the third finding asked by the plaintiff is, in effect, a finding in favor of the defendant on every other issue as to negligence. The general rule is, that the special findings and general verdict are to be harmonized wherever it can fairly be done. I think the issues in this case have been fairly tried; that the evidence sustains the verdict} and that there is nothing in the special findings necessarily inconsistent with the pleadings or the general verdict; but the majority of the court hold otherwise, and the judgment is therefore reversed, and a new trial ordered.