Kansas City, Fort Scott & Memphis Railroad v. Campbell

Milton, J. The only issue presented for our consideration is the alleged error of the trial court in overruling the demurrer filed by the Railroad Company to the evidence of the plaintiff below. A distinction between “gross negligence,” and “gross negligence amounting to wantoness,” is insisted upon by counsel for defendant in error, and he cites K. P. Rly. Co. v. Whipple (39 Kan. 531), Beach on Contributory Negligence, § 62, and other authorities as supporting his position. “Reckless negligence” would express pretty accurately the ordinary conception of such conduct as that of the men, who, in this case, sent two loaded cars unattended by a brakeman down a steep grade toward and against other cars which contained unwarned and unsuspecting people. It is true that plaintiff’s intestate was in an unsafe place, but harm in some degree was done to the men in the car with the horses, and to the horses, by the concussion. It is not necessary to take into account the negligence of the deceased, if we hold that the case ought have gone to the jury under plaintiff’s petition and evidence. K. P. Rly. Co. v. Whipple, supra; Battishill v. Humphreys, 64 Mich. 514, 38 N. W. Rep. 581; Palmer v. Chicago, St. L. & P. R. R. Co., 112 Ind. 250, 14 N. E. Rep. 70, and cases there cited; 2 Wood’s Railway Law, 1258; Beach on Contributory Negligence, § 64. If there had been no persons on the train, it would [421] have been very negligent to send those cars downgrade without a brakeman, as property was thereby endangered. In this case, the danger was not only to property but also to life and limb of persons on board the train. The employees must have known it was unsafe to send down those cars unattended, and, while they ought to have cared, they did not care for the probable consequences of their negligent act. In the case of Palmer v. Chicago, St. L. & P. R R. Co., supra, the Supreme Court of Indiana quotes from one of its former decisions, as follows : “ It is beyond question that to entitle one to recover for an injury to which his own negligence may have contributed, the injurious act or omission must have been purposely and intentionally committed, with a design to produce injury, or it must have been so committed under such circumstances as that its natural and reasonable consequence would be to produce injury to others. There must have been either aji actual or constructive intent to commit the injury.”' The court further observes : “These last cases distinctly recognize the rule that direct and positive intent is not always requisite to constitute a wilful act. If it were not so, what is said about a reckless disregard of probable consequences and a constructive intention would be meaningless.” In K. P. Rly. Co. v. Whipple, supra, it is said : “A party may recover for the reckless or wanton conduct of another, or as we have said, ‘for gross negligence amounting to wantonness,’ without a formal and direct intention to injure any particular person.” It is evident that injuries to persons and property would be likely to result from doing what the employees of the Company did in this case. If such injuries would likely result from such conduct, then we [422] ought not to say that such conduct does not show a reckless disregard for the safety of others. Smith v. A. T. & S. F. Rld. Co., 25 Kan. 744. We are not willing to declare as a matter of law that the conduct of the trainmen in this instance was free from the elements characterizing gross negligence amounting to recklessness or wantonness ; and this is precisely what we would do if we should hold that the demurrer to the evidence ought to have been sustained. What we do say is, that the evidence tended to prove such negligence and that it was a proper case for the jury. Wabash Rly. Co. v. Brown, 152 Ill. 484, 39 N. E. Rep. 273; S. K. Rly. Co. v. Sanford, 45 Kan. 372; S. K. Rly. Co. v. Rice, 38 id. 398; K. C. Rly. Co. v. Fitzsimmons, 22 id. 686; U. P. Rly. Co., E. D., v. Rollins, 5 id. 181. In the latter case the court says : “Negligence is a question of fact for the jury. It is for them to determine whether there has been any negligence, and its nature and degree. Even where the circumstances are all admitted, if there is any doubt as to what they may prove, it is still a question for the jury. It is not the duty of 'the court to draw inferences from the evidence, but only to pronounce legal conclusions from facts admitted, or properly found.” As wé view the matter, the court did not err in overruling the demurrer to plaintiff’s evidence. The jury inferred from the whole evidence that the Railroad Company, through its employees, was guilty of that kind of negligence which entitled plaintiff to a recovery notwithstanding the negligence of his intestate. The judgment of the trial court will be affirmed.