86 P. 156 | Kan. | 1906
The opinion of the court was delivered by
The jury made over seventy special findings, among them the following:
“(17) Ques. When said box car 7706 was put in' that train, and at the time the deceased lost his life, was, or was not, one of the grab-irons or foot-rests of the ladder on the south end of said box car 7706 mashed flat against the wood of the car so that it could not be safely used by the deceased as a handhold or as a foot-rest? Ans. Yes.”
“(21) Q. Did the deceased attempt to get from the top of said box car 7706, in the exercise of ordinary care, when [the train was] in motion, in an effort to reach his post of duty at the head end of the train near Scullin or Mill Creek station, at about two o’clock in the morning of the 7th day of November, 1902, or did he not? A. Yes; he did.
“(22) Q. If you answer ‘yes,’ then state if he did so in the customary manner and by the proper method in vogue by head-end trainmen under similar circumstances?' A. Yes.”
“(24) Q. If you answer question 16 ‘it was,’ then state would the deceased have lost his life if said grab-iron, or foot-rest, on the south side of said box car 7706 had not then been mashed flat against the said end of said box car, in all-reasonable probability? A. No.”
“ (26) Q. At the time of the death' of said William A. Johnson, was or was not the rung or foot-rest of the ladder of said box car 7706, on the south end of said box car, in a defective and unsafe condition for the trainmen to use or handle in the night-time in the discharge of their duty, in the exercise of ordinary care, and train in fast motion? A. Yes.
“(27) Q. If you answer ‘yes,’ then state if said con*89 dition could have been discovered by reasonably thorough or proper inspection, either before said box car 7706 was put in that train for transportation or, when en route and before the death of said William* A. Johnson? A. Yes.”
“(81) Q. Was or was not the top of the load upon saifl flat car (next to said box car) lower than the said grab-iron, or foot-rest, which was mashed flat against said end of said box car 7706? A. Yes; lower.”
.“(35) Q. If you answer ‘yes,’ then state if he fell from the grab-iron on the south end of said box car 7706 to the ground between the end of said box car and the end of said flat car, near the southwest corner of same, thence down to the ballast and between the rails? A. Yes.”
“ (41) Q. Was or was not said box car and its several appliances complained of, and each of them reasonably, properly and timely inspected by the defendant at Sapulpa, I. T., before said car was put in that train for transportation in and for the trainmen to Handle in the exercise of ordinary care? A. No, it was not.
“(42) Q. If you answer the last question ‘no,’ then state if that was a contributive proximate cause of the injuries to and death of said William A. Johnson. A. Yes.”
•“(56) Q. If you find and believe from the evidence that said appliances and car 7706 were defective and dangerous to use, then and there, and that the defects were of such a nature that in the exercise of ordinary care, by reasonable and proper and timely inspection- or otherwise by the defendant company, they could have been discovered, then state if the defendant should have discovered all same, before the injuries to, and death of, the said William A. Johnson, in the exercise of reasonable diligence. A. Yes.”
The principal contention of the plaintiff in error is that the defendant in error was not entitled to recover because she failed to show by evidence what the courts of the Indian Territory would hold in such a case. In her petition she pleaded the laws of the Indian Territory, and on the trial introduced in evidence the act of congress of May 2, 189.0, putting in force and effect in that territory certain chapters of Mansfield’s digest
“Plaintiff further avers and states that, under *the law in force and effect at the time and place of the death of said William A. Johnson, and still is in full force and effect (where his death and injuries occurred) , in and of the Indian Territory, the same being of similar import and character as the law of the state of Kansas, in such case made and provided, the plaintiff herein is entitled to maintain this action and demand against the defendant, and she may enforce the same not only in the courts of the Indian Territory but in the courts of the state of Kansas as well, and such enforcement in the courts of the state of Kansas would be beneficial to the plaintiff and in no manner contravenes the policy of the state of Kansas, and is not against good morals — the laws of said territory in this regard being substantially the same as the laws of the state of Kansas, and not penal but remedial in character — as will more fully and at. large appear by referring to said laws of said territory.”
Plaintiff in error’s position is: (1) That having alleged that she might have maintained this action in the Indian Territory it was incumbent upon defendant in error to prove what the courts there would hold in such a case; (2) that when congress adopted for the territory chapter 20 of Mansfield’s digest of the Arkansas statutes it did not adopt the construction of the common law as declared by the supreme court of Arkansas, but that, in order to determine what the common law of the Indian Territory is, we must look to the decisions of the United States courts for the eighth circuit, which have jurisdiction there. In the principal case cited by the plaintiff in error (St. Louis & S. F. R. Co. v. Arnett, 84 S. W. 599, 600) the exact contrary was held by the Texas civil court of appeals with respect to the effect
“Such putting in force in the Indian Territory of the common law as then existing in Arkansas carried with it the construction theretofore placed thereon by the courts, of that state.”
It was also said in the opinion that the uncontradicted evidence in that case “shows that in that state [Arkansas], prior to May 20, 1890, the question of fellow servant is determined exclusively by the character of the act intrusted to the person, rather than the rank of the employee.” If it were necessary to determine in this case what the common law of the Indian Territory is upon the question of fellow servants, this court, in the absence of evidence, would assume it to be the same as that of Kansas. (St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176.) Was it necessary for plaintiff to prove what the common law of the Indian Territory was at the time the accident happened, or what the courts of that territory would hold if this action were tried there ?
. The whole force of both contentions of plaintiff in error rests upon the assumption that the evidence in the case establishes that the only negligence for which the railroad company could in any event be held liable is the negligence of fellow servants of ■ the deceased. In other words, that the death was caused by the negligence of the inspectors, who, it is claimed, under the laws of the Indian Territory were fellow servants of deceased. Plaintiff in error says:
“The most that can be said from the evidence is that the inspectors at Sapulpa or Francis failed to do their duty, either to inspect the car thoroughly for such a defeot or to mark the same as in bad order.”
The assumption that this is all the'negligence shown is, we think, unwarranted. The railroad company offered no evidence that the car was ever inspected; so far as the evidence shows, it never was. The defect
What the courts of the Indian Territory would hold in a case where the only negligence shown is the act of a fellow servant is therefore wholly immaterial. The same question was decided in A. T. & S. F. Rld. Co. v. Lannigan, 56 Kan. 109, 42 Pac. 343. In that case the injury occurred in Missouri, at a time when the common-law rule in force in that state relieved the master from liability for the negligent act of a fellow servant. The proximate cause of the injury, however, was the failure of the railroad company to furnish the employee with a suitable lantern, and this court held that the fact that a fellow servant of the plaintiff was
It was not necessary for plaintiff to prove a conclusion of law. When she established that the action here was one which under the laws of the Indian Territory survived, that the laws of descents and distributions there permitted plaintiff to maintain the action, and that the death was caused by the negligence of the railroad company in putting the defective car into the train', this court assumes, as a matter of law, that the holding of the courts there would be the same as that of the courts here.
The next serious contention is that there was no proof connecting the death of the deceased with any negligence of defendant. Plaintiff in error suggests a number of ingenious theories, any one of which might, if true, account for the death of brakeman Johnson, and the claim is made that in the absence of direct evidence showing the exact manner in which he fell the jury could not rightfully find that his fall was caused by the defective grab-iron- on the end of the car. They urge that he might inadvertently have walked off the end of the box ear, or fallen in attempting to slide down the brake-staff, but these are purely speculative possibilities, rendered improbable by the fact that he was proved to have been a capable, ex-.
It is urged that there was no evidence of the length of time the defect existed; that the grab-iron on the end of the car might have been mashed in by coming in contact with the load of rails on the flat car after'the train was made up. Defendant in error met this theory by proof that the load on the flat car was so far below the grab-iron that the latter could not have become mashed in that way, leaving the inference that its condition must have been the same when it was placed in the train, and the jury so found.
It is also claimed that deceased had knowledge of the defective condition of the car, and therefore was
Complaint is made because the court admitted the testimony of a brakeman with reference to the usual and proper method of going from a box car to a flat car under the conditions and circumstances in which deceased was placed. This was not error. Similar testimony was held to be competent in Railway Co. v. Merrill, 61 Kan. 671, 60 Pac. 819.
There was no error in admitting proof that the defective condition of the car was repaired immediately after the accident. (St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176; City of Abilene v. Hendricks, 36 Kan. 196, 13 Pac. 121; A. T. & S. F. Rld. Co. v. McKee, 37 Kan. 592, 15 Pac. 484.)
The court gave the following instruction: “The burden is on the defendant to prove by a preponderance of the evidence the affirmative allegations of its answer.” Defendant had alleged in its answer the defense of contributory negligence, and it is contended that .under the authority of the case of Railway Co. v. Merrill, supra, this instruction was error. It is urged that the most of the evidence bearing upon contributory negligence came from plaintiff’s witness, Gardner, the rear brakeman. The fact is, however, he gave no testimony tending tó show contributory negligence of the deceased. He did not know what the deceased was doing a,t the time the accident occurred, except that he saw him going over the cars. We presume counsel claim that in his answer to a number of hypothetical
At the close of the evidence counsel for plaintiff waived the opening argument. Defendant thereupon contended that by waiving the opening argument counsel also waived the right to make a closing argument, and upon the court’s permitting counsel for plaintiff to reply to the argument of defendant an exception was saved, and it is claimed that the court erred. (Railroad Co. v. Vanzego, 71 Kan. 427, 80 Pac. 944.) Defendant had the right to submit the case to the jury without argument when plaintiff waived the opening statement, but, having elected to argue the case to the jury, was not in a position to object to plaintiff’s closing the argument by a reply. The party on whom rests the burden of proof has the right to open and close the argument; he can waive either of these, or both. By waiving the opening he waives the right to close, provided the other party also waives his argument. This is the orderly method of procedure universally adopted by the courts. The case cited does not go to the extent claimed for it by the plaintiff in error.
