Page images
PDF
EPUB

THE

Pacific Reporter. .

VOLUME XIV.

UNION PAC. Ry. Co. 0. HENRY.

(Supreme Court of Kansas. May 6, 1887.) 1. NEGLIGENCE-RAILROAD CROSSING-INSTRUCTION.

In an action against a railway company for damages to a team and omnibus injured at a public street crossing in a city, where the railway company was liable for ordinary negligence, and the injury caused by its negligence, and the court instructed the jury that if they found the plaintiff

' was not guilty of contributory negligence, or, if negligent, that his negligence was slight, and did not directly con

tribute to the injury, to find for the plaintiff, held not error.' 2. DAMAGES—EVIDENCE OF-INSTRUCTION.

Where plaintiff introduced two witnesses to prove his damages, and, before resting his case, declared that there were yet other witnesses to prove damages if the defendant intended to dispute the amount so proven, and counsel for defendant announced that defendant would introduce no testimony on the question of damages, and no further evidence is given, held not error for the court to instruct the jury that, if they found for the plaintiff, he was entitled to recover the amount as shown

by the undisputed testimony of plaintiff. 3. NEGLIGENCE-RAILROAD CROSSING-EVIDENCE.

Where an injury was caused by a railway company by backing a freight train on the public street of a city, on a dark night, and no flag-nian was present at the crossing, that fact is competent to be submitted to the jury, where it is also shown that no one was on the rear end of the train, and no signal or warning was given before

backing the train. 4. SAME-INSTRUCTIONS.

Where the court in charging the jury defines the different degrees of negligence, and instructs the jury that the only question for them to determine is the negligence of the respective parties, and that, if they find from the evidence that the defendant had done wrong and caused the injury, a prima facie case for compensation was made out, held, that the use of the riord wrong" was equivalent to "negli.

gence,” and was not misleading. (Syllabus by Clogston, C.)

Error to district court, Clay county.

James A. Henry brought this action against the Union Pacific Railway Company to recover damages sustained by the backing up of a train of cars over his omnibus and team, at Clay Center, Kansas. Plaintiff alleged the fact to be that on December 5, 1883, he was the owner of an omnibus and team of horses used by him in conveying passengers from the railway depot to plain

• Respecting what constitutes negligence in crossing a railroad track, see Kelly v. P:nnsylvania R. Co., (Pa.) 8 Atl, Rep. 856, and nota.

v.14p.no.1—1

tiff's hotel, and that on said day he had in his employ one Watrous in charge as driver of' said team; that said driver drove to the defendant's depot to receive passengers to arrive on the 7:30 P. M. train; that said train was the regular evening train, and composed of freight cars and one passenger coach, the passenger coach being on the rear of the train. After the train arrived, and the passengers were received, the driver started to drive to the hotel, and to do so he had to drive about one block parallel with the defendant's railway track, to the Fifth-street crossing, where he would have to cross the track. About the time he started from the depot the defendant's train commenced to back up towards the Fifth-street crossing, and stopped with the passenger coach standing about one-third in the street. The driver waited until the train stopped, when he started across the track. At this point there is also a side track, and, when between the two tracks, a loose car came down on the side track in the rear of the team, which frightened the horses, and before the driver could control them, they backed the omnibus against the rear end of the passenger coach, and before he could get disengaged from the coachi the train again began backing up, pushing the omnibus and team before it for about 50 feet, and finally ran the omnibus and team down, damaging the omnibus, and killing one of the horses. Plaintiff claimed damages to the amount of $499. All of which allegations the defendant denied, and alleged that the accident complained of by plaintiff was caused by the negligence of the plaintiff or his employe. Trial by jury. Verdict, special findings, and judgment for the plaintiff for $391.50, and costs. The defendant brings the case here.

A. L. Williams, J. P. Usher, and Chas. Monroe, for plaintiff in error. J. S. Walker and Harkness & Godard, for defendant in error.

CLOGSTON, C. The principal complaint made by the defendant, plaintiff in error, is in the instructions the court gave to the jury. The record in this case discloses but two issues over which there was any controversy at the trial: First, was the injury caused by the negligence of the defendant ? Second, was the plaintiff guilty of contributory negligence directly causing the injury? The findings of fact by the jury being in favor of the plaintiff, and against the defendant, on both of these propositions, and the evidence tending to support all of said findings, and said findings being consistent with the general verdict, we will therefore not examine the evidence further than to ascertain if the instructions complained of are correct under the evidence given.

Plaintiff complains of the first instruction given by the court, which is as follows: “This is an action brought by the plaintiff to recover damages from the defendant for injuries to the property of plaintiff sustained in a collision between the omnibus and horses of the plaintiff and the railway train of the defendant. There is no controversy as to the fact that the collision occurred; that it occurred in the city of Clay Center, at and upon the crossing of Fifth street and the railway track of the defendant; and no controversy as to the amount of damages sustained by the property of the plaintiff; the only question in the case for the determination of the jury being as to the negligence or want of due care of the respective parties, or their employes, and the amount, if any, that the plaintiff is entitled to recover, as shown by his undisputed testimony."

And the counsel particularly complain of these words in the instructions, And the amount, if any, that the plaintiff is entitled to recover, as shown by his undisputed testimony;" insisting that this part of the instructions is not supporteil by the evidence. We see no error in this charge. The evidence as to the extent of the damages sustained was not disputed, and the attention of counsel was called to this fact at the trial. Plaintiff's attorneys announced that they had a number of witnesses to establish the damages by, if the defendant expected to controvert this question; and counsel for the defendant stated in reply that they would not offer testimony on that question. In the face of this, can counsel say that the jury had a right to disregard the testimony of the plaintiff and his employe Watrous upon this question of damages? If counsel desired to insist upon this proposition, they ought to have made no admissions that kept plaintiff from introducing the reinainder of the evidence tending to show the damages claimed; but, having done so, we think the question of damages was admitted, and that the court gave the proper instructions.

Counsel also complain of the second instruction given by the court, which is as follows: “(2) În considering this case, you will first determine whether the defendant or its employes were guilty of negligence in the operation and management of its road and train which resulted in the injuries complained of. If you determine this question in the negative, you need not inquire further, but return a verdict for defendant. If you determine that there was such negligence, you will then inquire further whether there was contributory negligence, on the part of plaintiff or his employe, such that, under other instructions given in this case, he ought not to recover. If you find there was such contributory negligence on the part of the plaintiff or his em. ploye, you will return a verdict for the defendant. If, however, you find that the defendant was guilty of either ordinary or gross negligence, and that the plaintiff was not guilty of contributory negligence, or, if negligent, that his negligence was slight, and did not contribute directly to cause the injuries complained of, you will then find for the plaintiff, and assess his damages at such sum as you believe from the evidence he has sustained.”

Counsel insists that this instruction, in relation to the negligence of the plaintiff or his employe, was misleading and erroneous. Plaintiff in error does not contend that his instruction, as an abstract proposition of law, is not correct, but that, under the facts of this case, it was misleading; that, if the driver of the team was negligent at all, it did contribute directly to the injury. This would be true, taken as shown by the testimony offered by the defendant alone. Taking it for granted that the train never stopped backing until after the accident, and that the driver drove his team on the crossing in front of a moving train, this instruction might be misleading; but the testimony offered by plaintiff that the train was standing still; that the driver had no notice that the train would move further backward, and without warning of danger he drove on the crossing,--and this crossing a public one, as free to the plaintiff as to defendant; when not occupied by the defendant's train, the plaintiff might cross, -and when his team became unmanageable on the crossing, it then became the duty of the defendant to use more than ordinary care to prevent the injury. Slight negligence on the part of the driver, under such circumstances, would not relieve the defendant from liability. Leavenworth, L. & G. Ry. Co. v. Rice, 10 Kan. 426; Sawyer v. Sauer, Id. 466; Union Pac. Ry. Co. v. Rowllins, 5 Kan. 167; Kansas Pac. Ry.Co. v. Peavey, 29 Kan. 169.

Plaintiff also complains of the third instruction given by the court, which is as follows: “(3) The triple distinction of slight, ordinary, and gross negligence is recognized by the law, and apply to this case. Negligence is a want of due diligence. Slight negligence is merely the failure to exercise great or extraordinary care. Ordinary or common negligence is a want of that degree of care which an ordinary prudent man would ordinarily exercise under like circumstances. Gross negligence is the want of slight diligence. If you find, therefore, from the evidence, that defendant company has done wrong, and caused an injury thereby, a prima facie case for compensation is made out, unless you further find that the negligence of the plaintiff or his employe contributed directly to the injury complained of, when in such case the law declines to apportion the damages, and leaves the injured party without compensation. The degree of diligence required of plaintiff and his employe in tiff's hotel, and that on said day he had in his employ one Watrous in charge as driver of' said team; that said driver drove to the defendant's depot to receive passengers to arrive on the 7:30 P. M. train; that said train was the regular evening train, and composed of freight cars and one passenger coach, the passenger coach being on the rear of the train. After the train arrived, and the passengers were received, the driver started to drive to the hotel, and to do so he had to drive about one block parallel with the defendant's railway track, to the Fifth-street crossing, where he would have to cross the track. About the time he started from the depot the defendant's train commenced to back up towards the Fifth-street crossing, and stopped with the passenger coach standing about one-third in the street. The driver waited until the train stopped, when he started across the track. At this point there is also a side track, and, when between the two tracks, a loose car came down on the side track in the rear of the team, which frightened the horses, and before the driver could control them, they backed the omnibus against the rear end of the passenger coach, and before he could get disengaged from the coacli the train again began backing up, pushing the omnibus and team before it for about 50 feet, and finally ran the omnibus and team down, damaging the omnibus, and killing one of the horses. Plaintiff claimed damages to the amount of $499. All of which allegations the defendant denied, and alleged that the accident complained of by plaintiff was caused by the negligence of the plaintiff or his employe. Trial by jury. Verdict, special findings, and judgment for the plaintiff for $391.50, and costs. The defendant brings the case here.

A. L. Williams, J. P. Usher, and Chas. Monroe, for plaintiff in error. J. S. Walker and Harkness & Godard, for defendant in error.

CLOGSTON, C. The principal complaint made by the defendant, plaintiff in error, is in the instructions the court gave to the jury. The record in this case discloses but two issues over which there was any controversy at the trial: First, was the injury caused by the negligence of the defendant? Second, was the plaintiff guilty of contributory negligence directly causing the injury? The findings of fact by the jury being in favor of the plaintiff, and against the defendant, on both of these propositions, and the evidence tending to support all of said findings, and said findings being consistent with the general verdict, we will therefore not examine the evidence further than to ascertain if the instructions complained of are correct under the evidence given.

Plaintiff complains of the first instruction given by the court, which is as follows: "This is an action brought by the plaintiff to recover damages from the defendant for injuries to the property of plaintiff sustained in a collision between the omnibus and horses of the plaintiff and the railway train of the defendant. There is no controversy as to the fact that the collision occurred; that it occurred in the city of Clay Center, at and upon the crossing of Fifth street and the railway track of the defendant; and no controversy as to the amount of damages sustained by the property of the plaintiff; the only question in the case for the determination of the jury being as to the negligence or want of due care of the respective parties, or their employes, and the amount, if any, that the plaintiff is entitled to recover, as shown by his undisputed testimony."

And the counsel particularly complain of these words in the instructions, And the amount, if any, that the plaintiff is entitled to recover, as shown by his undisputed testimony;" insisting that this part of the instructions is not supported by the evidence. We see no error in this charge. The evidence as to the extent of the damages sustained was not disputed, and the attention of counsel was called to this fact at the trial. Plaintiff's attorneys announced that they had a number of witnesses to establish the damages by,

[ocr errors]

if the defendant expected to controvert this question; and counsel for the defendant stated in reply that they would not offer testimony on that question. In the face of this, can counsel say that the jury had a right to disregard the testimony of the plaintiff and his employe Watrous upon this question of damages? If counsel desired to insist upon this proposition, they ought to have made no admissions that kept plaintiff from introducing the remainder of the evidence tending to show the damages claimed; but, having done so, we think the question of damages was admitted, and that the court gave the proper instructions.

Counsel also complain of the second instruction given by the court, which is as follows: “(2) În considering this case, you will first determine whether the defendant or its employes were guilty of negligence in the operation and management of its road and train which resulted in the injuries complained of. If you determine this question in the negative, you need not inquire further, but return a verdict for defendant. If you determine that there was such negligence, you will then inquire further whether there was contributory negligence, on the part of plaintiff or his employe, such that, under other instructions given in this case, he ought not to recover. If you find there was such contributory negligence on the part of the plaintiff or his employe, you will return a verdict for the defendant. If, however, you find that the defendant was guilty of either ordinary or gross negligence, and that the plaintiff was not guilty of contributory negligence, or, if negligent, that his negligence was slight, and did not contribute directly to cause the injuries complained of, you will then find for the plaintiff, and assess his damages at such sum as you believe from the evidence he has sustained."

Counsel insists that this instruction, in relation to the negligence of the plaintiff or his employe, was misleading and erroneous. Plaintiff in error does not contend that his instruction, as an abstract proposition of law, is not correct, but that, under the facts of this case, it was misleading; that, if the driver of the team was negligent at all, it did contribute directly to the injury. This would be true, taken as shown by the testimony offered by the defendant alone. Taking it for granted that the train never stopped backing until after the accident, and that the driver drove his team on the crossing in front of a moving train, this instruction might be misleading; but the testimony offered by plaintiff that the train was standing still; that the driver had no notice that the train would move further backward, and without warning of danger he drove on the crossing,--and this crossing a public one, as free to the plaintiff as to defendant; when not occupied by the defendant's train, the plaintiff might cross,—and when his team became unmanageable on the crossing, it then became the duty of the defendant to use more thin ordinary care to prevent the injury. Slight negligence on the part of the driver, under such circumstances, would not relieve the defendant from liability. Leavenworth, L. & G. Ry. Co. v. Rice, 10 Kan. 4.26; Sawyer v. Sauer, Id. 466; Union Pac. Ry. Co. v. Rowllins, 5 Kan. 167; Kansas Pac. Ry.Co. v. Peavey, 29 Kan. 169.

Plaintiff also complains of the third instruction given by the court, which is as follows: “(3) The triple distinction of slight, ordinary, and gross negligence is recognized by the law, and apply to this case. Negligence is a want of due diligence. Slight negligence is merely the failure to exercise great or extraordinary care. Ordinary or common negligence is a want of that degree of care which an ordinary prudent man would ordinarily exercise under like circumstances. Gross negligence is the want of slight diligence. If you find, therefore, from the evidence, that defendant company has done wrong, and caused an injury thereby, a prima facie case for compensation is made out, unless you further tind that the negligence of the plaintiff or his employe contributed directly to the injury complained of, when in such case the law declines to apportion the damages, and leaves the injured party without compensation. The degree of diligence required of plaintiff and his employe in

« PreviousContinue »