St. Louis & San Francisco Railway Co. v. Shoemaker

Opinion by Simpson, C.: This case was tried by a jury upon the first two causes of action stated in the petition, and resulted in a verdict for the defendant in error, for $48.78. The jury returned answers to particular questions submitted to them, and among other things found that the railroad was constructed through the land of the defendant in error by a contractor, at a stipulated price, who had sole control of the [726] employment and discharge of his own hands and servants, and that they went outside of the right-of-way and dug and removed earth, stone, and gravel. They also found that the plaintiff in error, the railway company, employed hands and servants in the construction of said railroad; but they also found that such agents and servants of the railway company did not advise, aid or abet the person engaged in the construction of the road to go outside of the right-of-way and dig and remove stone, earth and gravel from the land of the defendant in error. These special findings are so inconsistent with each other, and are so antagonistic to the general verdict, that the case must be reversed for the same reasons given in Shoemaker v. St. L. & S. F. Rly. Co., 30 Kas. 359. It is recommended that the judgment be reversed, with instructions to grant a new trial. By the Court: It is so ordered. All the Justices concurring.