19 Kan. 488 | Kan. | 1878
Lead Opinion
The opinion of the court was delivered by
This action has been pending in the courts for nearly ten years, and the injury for which the damages were assessed occurred on the 19th of September 1867. The case was before this court at the July Term 1871, and is reported in 8 Kas. 658. On its return to the court below the parties filed new pleadings. The cause was tried the second time on 6th March 1876, and resulted in a verdict and judgment for the defendant in error for $10,000. The railway company again invokes the aid of this court to reverse the judgment against it.
Young was in the employment of the railway company, and by reason of such employment it became his duty to couple the cars upon the trains on which he was employed; and at the Lawrence station, while attempting to couple the cars by setting an iron pin in the drawhead of one of the cars, his right hand dropped between the bumpers of the two cars he was trying to couple, and was crushed so that amputation at the wrist became necessary. The petition alleged that the injuries resulted wholly and entirely from the negligence, carelessness, and recklessness of the railway company and its engineer then having charge and control of the engine attached to the train; that said engineer, in backing his engine and the cars attached for the purpose of having the same
That the evidence fully established the unfitness and incompetency of the engineer for the business intrusted to him, and that the company knew and ought to have known of such unfitness and incompetency, we do not think can be fairly questioned. The critical points in the case of the defendant in error were, in our view, whether the injury received was caused by the negligence of the engineer, and whether Young was guilty of contributory negligence. These questions however were properly submitted to the jury for their determination, upon instructions fully warranted by the previous decisions of this court, and from the verdict must have been
The most serious matter in the case for our consideration is the objection urged against the verdict on the ground that it is excessive. In determining this objection, in addition to the many other elements that enter into the estimate of the real amount of damages sustained by the defendant in error, we are to consider the fact that he was only twenty-four or five years of age at the time of the amputation of his hand, that he was engaged in an employment in which there is a regular system of promotions, that many years 'elapsed between the injury and the verdict, and that two juries have decided substantially in favor of the sum of $10,000. Again, the trial court, whose imperative duty it was to set aside the verdict, or reduce its amount, if the jury erred from prejudice or other cause, has approved the same, and added its sanction to the award. The question was one peculiarly proper for the jury to determine; and although the verdict is large, larger perhaps than any member of this court would, as a juror, have returned, we cannot, in view of all the cir
Concurrence Opinion
I concur in the foregoing opinion of the Chief Justice. While I think that the verdict of the jury awards excessive damages, yet I do not think that the excess is so great that it alone, without any other error or irregularity in the proceedings of the court below, would authorize a reversal by this court of the decision and judgment of the court below.
But all that I wish to say is merely a few words with respect to negligence. Twice the very learned and senior counsel for the plaintiff in error has charged this court with adopting what he calls the rule or doctrine of “comparative negligence.” The first time he so charged was in his oral argument on a motion for a re-hearing in the case of the K. P. Rly. Co. v. Pointer. (That case will be found reported in 14 Kas., 37 to 67.) The second time he so charged was in his oral argument in this case. Mr. Justice Brewer denied the charge on the first occasion; (14 Kas. 66;) and I shall deny it now. I do not think that there is anything in all the Kansas Reports furnishing the slightest foundation for such a charge. ' I do not think that any judge of this court has ever entertained the slightest inclination- to adopt any such doctrine, and certainly no judge of this court has within the last nine years believed in any such doctrine. The counsel’s supposed doctrine of “comparative negligence,” as I understand him, is this: Where two parties are guilty of negligence contributing to the injury of one of them, the injured party may recover damages therefor from the other, provided his negligence is less than that of the other. Now it is generally true, that the party recovering damages for injuries resulting from negligence must himself have been guilty of less negligence than the other party. But this is not always true. A passenger on a railroad, who has exercised ordinary care, that is, that degree of care which an
The judgment will be affirmed.
Concurrence Opinion
I am unable to concur with my brethren in affirming the judgment in this case. To my mind the amount given by the jury is so largely in excess of any fair compensation for the injury as to call imperatively upon this court to interfere and set the verdict aside. I expressed my
Judgment affirmed.
[Note.—A petition for a rehearing of this case was filed on the part of the railroad company, on the 22d of January 1878, and was argued by J. P. Usher in support of the motion, and Thomas P. Fenlon in opposition. The motion was denied.]