Union Pacific Railway Co. v. Mitchell
43 P. 244
Kan.
1896
Check Treatment

The opinion of the court was delivered by

Martin, C. J.

: I. The railway company contends that the evidence is not sufficient upon which to base a judgment against it. Some of the facts were contested. The conductor and the head brakeman testified that they gave no order to Roy Wilson or anyone else to jerk off or pull off young Mitchell from the train; but the jury found, upon evidence which we must hold sufficient, that such order’ was given by the conductor. We must therefore accept the finding of the jury touching this important fact in the case. Our attention is called to A. T. & S. F. Rld. Co. v. Gants, 38 Kan. 608, 625, where this court, treating of the ejectment of a trespasser from a passenger-train, said : ‘1 By resisting to the utmost of his power and ability, Gants invited force, and he ought not to complain of the force used, if there was no intention upon the part of the conductor or his assistants to commit unnecessary injury.” But in that case the principle was expressly recognized that care must be taken not to expose the person of the trespasser to serious injury or danger; and it was a question of fact, to be determined by the jury in this case, whether or not the pulling or jerking of the boy from the train by order of the conductor while it was running at the rate of speed shown by the evidence, which was 9 or 10 miles an hour, was such an act as to expose the boy to 'serious injury or danger. We do not deny the right of those in control of rail way-trains to eject a *330trespasser therefrom even when moving, but when the speed, is so great that removal from the train is necessarily attended with great danger of serious injury to the person of the trespasser such right does not exist, and whether the circumstances are such as to justify the ejection of a trespasser from a moving train is a question of fact that must be submitted to the jury, under proper instructions of the court. (K. C. Ft. S. & G. Rld. Co. v. Kelly, 36 Kan. 655, 657, 658.)

II. The plaintiff in error complains of the instructions given by the court, and says that under them a recovery might be had for mere negligence in removing young Mitchell from the train, the term “reckless conduct" meaning nothing more, and being coupled disjunctively with the words “wilful," “wanton," and “malicious." It is contended that a trespasser in such case has no remedy, unless the act of the defendant resulting in the injury was either wilful, wanton, or malicious, and the cases of U. P. Rly. Co. v. Adams, 33 Kan. 427, 429, A. T. & S. F. Rld. Co. v. Gants, supra, and Tennis v. Rapid Transit Rly. Co., 45 Kan. 503, 507, are cited in support of this position, but they are not inconsistent with K. P. Rly. Co. v. Whipple, 39 Kan. 531, 540, where it was said that “the fact that one has carelessly put himself in a place of danger is never an excuse for another recklessly or wantonly injuring him ’ ’ ; and the definitions of recklessness and wantonness given by the court below were taken from the opinion in that case, where it is further stated, that “in popular use, and-by our decisions, recklessness and wantonness are stronger terms than mere ordinary negligence, and therefore, if a person recklessly or wantonly injures another, such person may be subject to damages, even if the other party has been *331guilty of some negligence or is a trespasser.” As the court carefully used and fairly defined the term “reckless conduct” and “recklessly” in connection with the facts in the case, the plaintiff in error has no substantial ground of complaint in this regard.

III. The jury returned a verdict in favor of the plaintiff below for $9,000. On the hearing of a motion for a new trial, the court permitted the plaintiff to reduce the damages in the sum of $2,500, and stated that, on failure to do so, a new trial would be ordered ; and the reduction being accepted, judgment was rendered for the sum of $6,500. The railway company contends that the court had no right to make this order, but should have awarded a new trial, by reason of the allowance of excessive damages given under the influence of passion and prejudice. The court filed a written opinion on the decision of the motion, and in this there is no suggestion of passion or prejudice on the part of the jury. But the court, after reviewing the decisions of this court in personal-injury cases, held that $6,500 was a reasonable sum, and that all above that amount was excessive. In Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, 74, it was held that this court had the right in such cases to suggest the reduction of damages to a reasonable sum, and to permit the plaintiff to elect to take judgment for the reduced amount, or compel him to accept a new trial. And this being permissible, we are aware of no reason for the denial of the exercise of like power by the trial court, which is often better able than the appellate court to act intelligently in the premises; and the right of the trial court to compel a remission of part of the verdict in damage cases was upheld in Broquet v. Tripp, 36 Kan. 701, 704. There is no conflict between these cases and P. & P. Rld Co. v. Montgomery, *33246 Kan. 120, which was an award of damages in a condemnation proceeding depending upon estimates given by witnesses respecting values forming a basis for the verdict, and it was evident from the record that the jury had gone to the extreme limit of the highest estimates on each item, and the court compelled a large gross reduction, not explainable from the record on any other hypothesis than that the verdict was unfair and indicative of passion and prejudice of .the jury; and wherever this is apparent a new trial must be granted. But in personal-injury cases, as stated by the court below, no certain rule of damages can be given, and the jury were properly instructed that, in the event of a verdict in favor of the plaintiff, they should award such sum as in their sound judgment was just and reasonable for the injury suffered. The mere fact that the trial court, on a review of our Kansas decisions, came to the conclusion that the award was larger than had been generally sustained by the precedents in this state, was no evidence that he considered that the jury was actuated by passion or prejudice in fixing the amount.

The case seems to have been fairly tried by the court and jury, and the judgment must be affirmed.

All the Justices concurring.