Kansas Pacific Railway Co. v. Richardson

The opinion of the court was delivered.by Hortoít, C. J.: [406] „ 1. Question of findingsusU’ tamed. [405] Various reasons are urged by the counsel of the railway company for setting aside this verdict and judgment, but the main reasons alleged are, that from the undisputed facts in the case, the railway company was not negligent, and Richardson was negligent. These reasons are presented in different ways. It is said there was no proof of negligence of the company; that Richardson did not take the slightest precaution to protect himself, and that his injuries were all caused by his own want of care. The jury in the general verdict and the special findings decided otherwise. They found specially that the railway company was guilty of negligence in running at too great a rate of speed, and in failing to give proper signals of warning of the approach of the train to the crossing. They further found that Richardson was not guilty of any negligence contributing to his injury. We are therefore called upon to determine whether the general verdict and special findings were clearly against the evidence. In reference to the negligence of the company in failing to give signals of warning, the plaintiff and five witnesses who were present, testified they did not hear the whistle sounded or the bell rung until the instant of the collision. The plaintiff testified: “ I looked to the west, and all I saw was a large pile of lumber; didn’t hear bell, whistle, or anything. I looked ahead, and everything was all clear in the [406] street. When I saw tlie train, the first thing [I did] I threw up my hands and pulled my team around, and the train whooped, whooped, whistled and struck about the same time.” One of his witnesses stated, “ He was ten or fifteen feet from the depot, and would have heard the signals if any had been given.” Another said: “He was in a warehouse, two hundred feet west of Kansas avenue and north of the track, with the door open to the track; that he stood in the door when the train passed; didn’t notice any ringing of the bell when the train passed him, and didn’t hear train whistle for station, but this was so common, might have failed to notice it.” Other of these witnesses saw the train come in and were in positions to have heard the signals if there had been any. J. B. Johnson, who was a passenger in the car next to the rear one, testified “he didn’t hear any alarm.” On the part of the defense, the fireman testified: “He whistled for station above the tank, 300 or 400 yards west of the crossing; was ringing the bell when he came in; commenced opposite the tank, and kept it up till train stopped; whistled again before reaching the crossing.” The engineer testified: “ Whistled for station; bell was ringing; commenced at water tank, and continued.till we stopped.” Taylor said: “I heard train first whistle at water tank, 200 yards from crossing; the ringing of bell at switch, 100 yards west of crossing, and the bell rang until they whistled at corner of lumber yard, 75 or 80 feet from where the train struck.” Four other witnesses stated they heard the whistle sounded 300 or 400 yards west of the crossing, and the bell ringing when the train came in. Now, though most of this evidence on the part of the plaintiff below was of a negative character, and the company gave positive evidence of a greater number of witnesses to contradict and overcome it, still there was a sufficient conflict of evidence to raise a question of fact, which the trial * ' court was justified in submitting to. the jury. ^he evj<jence against the giving of the signals was more, when carefully considered, than a mere “I did not hear.” Some of these witnesses had their attention directed [407] to the train as it came in; they were looking at the train, and were in a position to give heed to the presence or absence of the signals. The evidence conduced to prove that the signals were not properly and timely given; at least it was some evidence in that direction. The failure to give signals must be proved by witnesses that they did not hear them. When others testify that they gave them, and others testify that they did hear them, there is evidence on both sides to be considered. The evidence before the court being sufficient to be submitted to the jury, and to be considered by them, it was sufficient to sustain a finding that proper signals of warning ■of the approach of the train to the crossing were not given. As to the effect of the omission of timely signals, see L. L. & G. Rld. Co. v. Rice, 10 Kas. 426; Renwick v. N. Y. C. Rld. Co., 36 N. Y. 132. [408] 2. Province ofajury. [407] We do not intend by the conclusion we have reached, to have it understood that the mére “ I didn’t hear ” of several witnesses, when met by a greater number of witnesses that signals were given, is proof that signals were not given. In this case, we think there was some proof tending to show that the signals were not given, and that the jury had the right to pass upon the matter. This is all we decide now. As to the speed of the train, an examination of the evidence clearly •shows the special finding of the jury that the train was running at the time of the injury fifteen miles per hour had ample support. Brown' testified that the train was running from fifteen to twenty miles an hour; Nellan said, “running fast.” Phillips stated, “from ten to fifteen miles per hour.” Lukins gave evidence that the train came in “unusually fast.” Johnson said the “train was coming fast.” The testimony of several witnesses was to the effect that the train ran its length, 450 feet, after the brakes were applied. Courtney, a locomotive engineer of eighteen years’ experience, testified: “If the train had been going from eighteen to twenty miles an hour, it ought to have been stopped with the appliances used in fifty feet.” Much of this evidence was contradicted by other witnesses of the company; but it is undeniably [408] true that considerable evidence was given on both sides. The jury heard the witnesses, passed upon their credibility, and rendered a finding which has received the approval of the trial court. To us it is conclusive. It was said in Pacific Rld. Co. v. Houts, 12 Kas. 332: “For a company to run its train at the highest speed through the crowded streets of a city would be the grossest negligence; and the rate of speed at which those trains may be run is relative to the dangers attendant on such running.” Upon the claim of counsel that Richardson was guilty of contributory negligence, and that the findings of the jury to the contrary are without proof, we have this to say: Where the evidence on such a ques-fton is doubtful, and the inferences to be drawn from the facts are uncertain, it is the province of the jury to decide. 3 contributory qMstfoSoeí, oiajmy. The degree of diligence required of Richardson was such as a man of ordinary prudence would have exercised under similar circumstances. (L. L. & G. Rld. Co. v. Rice, supra. See Desmond v. Brown, 29 Iowa, 54.) As there was evidence that he looked west before crossing the track, saw only a pile of lumber, heard no bell or whistle, then looked ahead, saw the street clear, and as soon as he saw the train, pulled his team around, and as others as near as himself to the persons calling out for him to stop, did not hear the cries of “Stop!” and as there was evidence that the train was running at a too great rate of speed, and that no signals were properly given, there were such doubtful and qualifying circumstances attendant uPon the case that the question of his negligence or want of care was a matter for the jucjgment of a jury, whose ordinary observation and experience of the conduct of men might be properly called into requisition. The case, as to the negligence of the injured party, is a very close one, and although it may be doubtful whether the findings thereon are absolutely correct, the facts against them are not so clear, nor is the jury so manifestly mistaken, that we feel at liberty to set the verdict aside. The law has said, in cases presenting the facts and, [409] surroundings of this one, that the judgment of twelve men, and not the opinion of one, two or three, shall control. (K. P. Rly. Co. v. Pointer, 14 Kas. 37; K. P. Rly. Co. Kunkel, 17 Kas. 145; P. P. & J. Rld. Co. v. Siltman, 88 Ill. 529.) 4 raüroícT™ at crossing. Error is also alleged in the admission of evidence that the company had no flagman at the crossing. It is argued that as the petition specified with particularity the acts of negligence of the company, both of omission and commission, and omitted any reference to the absence of the flagman, any evidence thereof was incompetent. We . L do not concur with counsel^ who presses this point so persistently. The absence of the flagman at the crossing could be proved as one of the circumstances existing at the time and place of the accident. .Such evidence was a part of the res gestee, and tended to show to some extent the necessity of the timely signals of warning in approaching the crossing. If no flagman was at the crossing, the more important the signals to warn parties about to cross. The proof of the absence of the flagman was not the negligence found by the jury, nor the actual basis of any recovery. It was only admitted as an incident or circumstance to establish the degree of negligence in running the train at a great rate of speed without signals. Therefore, in our view, it is not the case of a'pleader averring in his petition one ground of action, and on the trial proving and recovering on another. The case of T. W. & W. Rly. Co. v. Foss, 88 Ill. 551, to which we are referred as conclusive against the admission of such evidence, is not parallel. There the only negligence averred was, that the defendant carelessly ran its train upon which plaintiff was a passenger, yet, on the trial, a recovery was sought upon the ground that the defendant was negligent in failing to properly fence its track and providing steam brakes. The difference between the case cited and the one at bar is manifest without extended argument. In the one, the evidence offered tended to characterize the acts of negligence charged in the petition; in the other, a recovery was sought upon the proof of independent and distinct acts of negligence not alleged in the petition. [410] .Tt is further urged, that the court erred in its instructions to the jury. It is conceded that the instructions were warranted under the previous decisions of this court; but it is contended that this court ought to discountenance its former rulings upon the degrees of negligence. Counsel alleges that this court has adopted what is generally understood as comparative negligence, and that the rule “ misleads and confuses.” The comments upon this question in the case of K. P. Rly. Co. v. Pointer, 14 Kas. 37, and the thorough discussion of the subject of negligence by Mr. Justice VALENTINE in his concurring opinion in the case of Young v. U. P. Rly. Co., 19 Kas. 488, together with the numerous decisions of this court in the same direction, render unnecessary any discussion here. Upon the whole record, we perceive no error prejudicial to the rights of the railway company, and therefore the judgment of the district court will be affirmed. All the Justices concurring.