Atchison, Topeka & Santa Fe Railroad v. Chance

The opinion of the court was delivered by Martin, C. J. : [46] 1. Incompetent juror. [45] I. The court erred in overruling the defendant’s challenge for cause of William Dye as a juror. He seems to have been fair and straightforward in answering the questions of court and counsel, and he might have been entirely fair in the considera [46] tion of the case; but, as he felt that it would require a continual effort on his part to deal with the railroad company in the same way that he would with an individual, and that, perhaps, he could not consider the case in an-impartial way, it was the duty of the court to excuse him. A juror may be challenged “on suspicion of prejudice against, or partiality for, either party” (§ 270, Code) ; and where the trial judge is in doubt as to the impartiality of a juror, a challenge for cause should be sustained. (M. K. & T. Rly. Co. v. Munkers, 11 Kan. 223, 232.) The defendant having exhausted all its peremptory challenges, the error will be considered material although the juror was afterward discharged on peremptory challenge. (The State v. Vogan, 56 Kan. 61, 63, and cases cited.) 2. Managementof hand-cars. II. The quoted testimony of Mr. Schroeder was somewhat objectionable, notwithstanding the liberal rule adopted by this- court in Mo. Pac. Rly. Co. v. Mackey, 33 Kan. 298, as to the duties of persons engaged in a particular employment. It does not appear that Mr. Schroeder had ever been foreman of a gang of men engaged like this in relaying a track and using several hand-cars in their work. Besides it was a question of fact for the jury to determine as to the distance that the hand-cars should be kept apart so as not to be a source of danger to the men riding upon them, for a safe distance would vary with the speed of the cars, and the grade and condition of the track, and would not, necessarily, be “four telegraph-poles ” at all times. The admission of this evidence, however, would not require a reversal of the case, for the evidence shows that the hindmost car was within 15 to 30 feet of the middle one at the time of the derailment of the latter; but, [47] as the case must be retried, we have deemed it best to call attention to the error in the admission of this testimony, in order to guard against its repetition. 3. Damages for mental suffering. III. The court erred in refusing to strike out the testimony to the effect that Finnegan was troubled by the sickness and confinement of his wife, and the fear that he would leave her and the child in a dependent and helpless condition. Under the decisions of this court, a recovery may be had for mental suffering or anguish of mind resulting from physical pain and suffering endured by the injured party; but it is improper to admit evidence as to mental suffering on account of the circumstances or condition of others. (City of Parsons v. Lindsay, 26 Kan. 426, 435; City of Salina v. Trosper, 27 id. 544, 564; West v. Telegraph Co., 39 id. 93, 99.) The sum awarded for mental suffering, which was liberal, may have been enhanced by the admission of this incompetent testimony, and we cannot hold that the error in its admission was not prejudicial to the defendant. 4. Damages for loss of time. IY. In fixing the value of- the time lost by Finnegan from the date of his injury until his death, it would be proper for the jury to consider his age, his occupation, and the wages which he had earned in the past in whatever capacity he may have been employed. The opinions of witnesses, however, as to what he would be capable of earning at vocations in which he had never been employed were clearly inadmissible. (A. & W. P. Rld. Co. v. Newton, 85 Ga. 517, 526 ; same case, 45 Am. &, Eng. R. Cas. 211.) This is also an error for which the court would not reverse the judgment, as the allowance for loss of time was not substantially different from the amount shown by competent evidence. [48] 5. When deathresults "from other < fiuses. V. Instruction 21 was somewhat vague and uncertain as to the fourth element of damage, and it was this, no doubt, that caused the inquiry of the jury as to whether damages for permanent injury were limited to the actual lifetime of the person injured ; and this called forth the further instruction of the court that such damages were not limited to the lifetime of Finnegan. In the an-' swer of the jury to the particular question of fact regarding the length of time taken into consideration as a basis for an estimate, the jury evidently had regard to the expectancy of the life of Finnegan, although no evidence was introduced upon the subject. "We think, however, that such evidence would not have been admissible, for expectancy is only to be resorted to in the absence of certainty, and as the life of Finnegan was terminated before the trial, there was no basis for an estimate of damages extending beyond that period. Damages for the permanent deprivation of health and of the capacity to work and enjoy.life should therefore be limited to the period extending from December 1,1890, to October 18, 1891. (Busw. Pers. Inj. § 20.) 6. Evidence and findings sufficient. VI. The court did not err in overruling the motion of the defendant for judgment in its favor, notwithstanding the general verdict. It is true that Finnegan assumed the ordinary risks of the employment in which he was engaged, and all defects in the hand-car and in the track of which he had knowledge, or which in the exercise of ordinary care should have been known to him. The upright of the hand-car had been broken and was mended only in a temporary way. This was a patent defect of which Finnegan must be held to have known, but it was not even a contributing cause to the derailment. [49] The worn condition of the cog-wheels and of the flanges was not so obvious. The active duty of inspection was not incumbent upon Finnegan, and therefore it was a question of fact for the jury to determine whether he, in the exercise of ordinary care, should have discovered that the hand-car was unsafe and unfit for use in these respects. Finnegan was not a section-man engaged in repairing the track. He and his colaborers were taking up the old track, and laying down new steel rails. The road was in operation, and Pat. Lynch was the section-foreman, whose duty it was to keep the track in a reasonably safe condition until the new steel rails were laid down. He testified that he knew of this particular defective rail for two weeks prior to the injury. Finnegan had no opportunity of examining this rail, or any other, except in passing over the track on the hand-car going to and from his work. The evidence shows that many of the iron rails were battered and worn, but the particular one where the derailment occurred was unusually bad. It was also a question for the jury to determine whether Finnegan was guilty of negligence or not in running over this bad rail to and from his work without objection. Hare, the foreman of the steel gang, testified that it was dangerous to run the cars at a less distance than a telegraph-pole, or 180 feet apart, yet he must have known that on this occasion the three cars were running quite near to each other, and the men on the hindmost car certainly knew that they were very close upon the middle car, and Finnegan was powerless to prevent' this, except by running faster, which would involve the first car in danger. The evidence and the particular findings of fact justify a verdict in favor of the plaintiff. Finnegan, who was only 29 years of age, was left a physical wreck by the [50] injury, so that life was changed from a pleasure to a burden, which he perhaps chose to lay down rather than longer to bear, and, except for the large allowance for permanent injury, we cannot say that the verdict is excessive. The defendant in error challenges the sufficiency of. the record to present the errors complained of, but we think that, by a liberal interpretation, the record must be held sufficient. The plaintiff in error presents some further questions, but we think they are without substantial merit. On account of the errors hereinbefore mentioned, however, the judgment must be reversed, and the case remanded for a new trial. All the Justices concurring.