Atchison, Topeka & Santa Fe Railroad v. Shaw

The opinion of the court was delivered by Allen, J. : The errors assigned are very numerous. We have examined them all, but deem it unnecessary to make mention of any but the principal questions presented. I. It is said that the negligence charged was that “the engineer and servants in charge of said train, suddenly, carelessly, and with gross negligence, backed said train across said highway, striking the wagon in which said plaintiff was riding.” On the trial, the plaintiff offered in evidence an ordinance of the city of Wichita, requiring the defendant to maintain and operate automatic gates at all street crossings where there were two or more tracks. This was objected to by the defendant, but the objection was overruled. The plaintiff proved, without objection, that no gates were maintained, and that no flagman was stationed at the crossing, and the court instructed the jury that if they found that an ordinance required the defendant to maintain gates across First street, that the defendant failed to comply with the ordi [523] nance, and that such failure was the proximate cause of the injury, the defendant would be liable for the damages resulting from it. The jury, in answer to the forty-fifth question, find that it was negligence on the part of the company not to maintain automatic gates at this crossing. The failure to maintain gates at a crossing where the city ordinance required them might be, of itself, such negligence as would render the company liable for an injury received by a person crossing the track, and where the failure to maintain the gates is relied on as the ground of recovery it ought to be alleged in the petition. A careful examination of the whole case presented convinces us, however, that the.jury were not influenced by this testimony. The failure to maintain the gates was not relied on for a recovery. There was an abundant showing of negligence without it. The forty-fourth special question submitted by the defendant was, “Q. Do you find that the defendant caused plaintiff’s injury by wilful and wanton negligence? A. Yes.” We think the testimony of the witnesses for the defendant, and especially that of the engineer, shows that the switching crew were not only guilty of negligence, but of very gross negligence. The car which struck the wagon was standing, as the jury find, 15 to 18 feet south of the north line of First street. The engineer testifies that he could not see the rear cars because of cars on the Wichita & Western track. It is clear from all the evidence that no person was stationed upon or near the car which caused the injury, either to observe and warn persons passing along the street, to regulate the movement of cars, or to give signals to the engineer; nor were there trainmen so stationed along the train that signals could be readily transmitted to the engineer by any one on the ground [524] near First street. The foreman was operating in utter disregard of the safety of persons passing along the street, and we think the finding of the jury of wanton negligence in the management of the train is not only abundantly sustained by the evidence, but is uncontradicted by any witnesses except McCambridge himself, and even his testimony fails to show that he was taking that care which ought always to be taken under similar circumstances. Under this state of facts, the error with reference to the gates appears unimportant. II. The claim that the plaintiff was guilty of contributory negligence as a matter of law, merely because the horse passed along the street on a slow trot, cannot be sustained. Her conduct was of course a proper subject of consideration by the jury, and the question whether she acted with ordinary prudence was fairly submitted to them, and their finding was in her favor. As the car which caused the injury was standing still until the horse was almost upon the track, and as the engine which propelled it was a long distance away, out of sight, and especially as no trainman was in sight to give any warning that the car was likely to move suddenly, we'are unable to perceive anything in the conduct of the plaintiff sufficient to bar her recovery, and certainly not in opposition to the finding of the jury. III. At the request of the defendant, 52 special questions were submitted to the jury. They were not all answered when firs* returned into court, and the jury were again sent out. As the verdict was finally received, the eighth, fifteenth, thirtieth, thirty-first, thirty-second and fiftieth questions were answered “ Don’t know.” Numerous cases are cited to the effect that these answers are improper, and that the court should have required the jury to return proper [525] answers to them. It is only pertinent, properly framed questions, which can be intelligently answered from the testimony, that the court is required to compel an answer to. We do not deem it of any general interest to enter into a minute analysis of these questions, or of the testimony bearing on them, but shall content ourselves with the remark that the answers are fairer than the questions, and about as good as could be given under the testimony. The twenty-eighth question and answer were : "Was there anything to prevent plaintiff from seeing the engine when 110 feet from the main track, if she'had looked in its direction? A. We cannot answer, as no direction is given.” There is very little significance in this question, and we think the answer is only subject to criticism because of the concluding portion of it. What the jury doubtless meant is,.that, from the testimony, the exact direction of the engine from the point named, when the plaintiff passed it, could not be determined, and we think this is the truth. IY. It is claimed that the damages are excessive, given under the influence of passion and prejudice, and reference is made to the finding that the defendant was guilty of wanton and wilful negligence, and awarded $1,000 exemplary damages, as evidence thereof. There was a great deal of testimony by physicians with reference to the nature of the plaintiff’s injuries. That she was severely hurt and rendered delirious several days is beyond dispute. Whether her injuries are of a permanent character, and such as the testimony in her behalf tended to show, was a proper matter for the consideration of the jury, and we 'find nothing in the award of damages to shock our sense of right, nor are we at all clear that this was not a proper case for exemplary damages. [526] V. Many questions were raised on the introduction of testimony, and are urged in the brief, but we find nothing we deem reversible error, nor worthy of special mention. Numerous criticisms of the instructions are made,- but on the whole we think the case was fairly submitted, and that the verdict was right. The judgment is affirmed. All the Justices concurring.