St. Louis & San Francisco Railway Co. v. Bricker

59 P. 268 | Kan. | 1899

The opinion of the court was delivered by

Smith, J. :

The findings of the jury being inconsistent with one another, the verdict cannot stand. It is found that the direct cause of the injury was the failure of the foreman in charge of the bridge repairers to give timely warning to the defendant in error, and neglect of the foreman to inform the men who were unloading the timbers that there was any one under the bridge at work. It is also found that defendant in error knew that his coemployees were at work above him, and that they were about to throw off a stick of timber. This, coupled with the finding that Bricker could have avoided .the injury complaihed of had he remained where he was at work and watched which side of the bridge the stick of timber was about to fall, tends to the conclusion that the defendant in error was guilty of contributory negligence, and that his own want of care, and not that of the foreman, caused 'the injury. While want of ordinary care on the part of the foreman is expressly found in at least six of the answers to particular questions, yet a strong showing of contributory negligence on the part of plaintiff below appears in three other answers.

The inconsistency between these different findings is so palpable and clear as to render them irreconcilable. In one answer the jury say that plaintiff below had no timely warning of danger, and in another that his situation and information were such that he needed none — in effect, saying that a warning would not contribute to the knowledge he already possessed of his dangerous position. The general verdict, based on such findings, must be set aside. ( Shoemaker v. St. L. & S. F. Rly. Co., 30 Kan. 359, 2 Pac. 517; A. T. & S. F. Rld. Co. v. Weber, Adm’r, 33 id. 543, 6 Pac. 877; A. T. & S. F. Rld. Co. v. Maher, 23 id. 163.)

The judgment of the court below will be reversed, and a new trial ordered.