Jolliff v. Kansas City Western Railway Co.

The opinion of the court was delivered by Mason, J.: William Jolliff was in the employ of an interurban electric railroad company as night repair man. His duties were to take charge of disabled cars brought to a machine shop, and do such work upon [759] them as might be directed. He had been so employed for several years. The cars were brought into the shop over a track, under which was a pit about six feet deep, to enable workmen to get beneath the car. Provision was made for lighting the. pit by five electric bulbs, all on the same circuit. Two were below the stringers. One night Jolliff was directed to take a disabled car from the yard to the shop and repair it. He stood upon the rear of the car while a helper, acting as motorman, backed it into the barn. As it entered the barn he discovered two pairs of car wheels on the track over the pit. Upon his signal the car was stopped and he stepped from it to remove them. He pushed one pair a little distance away from the ear and then undertook to move the other in the same direction. Some oil had been spilled on the floor, which caused his foot to slip, and he fell over the moving wheels, which rolled against the other pair. His hand was caught between the wheels, and he was otherwise injured. He sued the company and obtained a judgment, from which the defendant appeals. The jury found that while the plaintiff’s fall was caused by the oily floor, the defendant was not guilty of any negligence by reason of the oil being there. They also found that the defendant was not negligent with respect to the quality of the oil furnished for use in the plaintiff’s lantern, concerning which he had made some complaint. These matters, being eliminated, the sole ground of negligence relied upon to sustain the judgment is the failure of the defendant to provide sufficient light in the repair shop. The electric lights already referred to had been out of order several times within the preceding three weeks—had been repaired and burned out, the plaintiff said, probably three or four times. Three days before the injury the plaintiff notified the foreman that the lights were in bad condi-' tion, and a promise was made to repair them. They were not burning when the car was brought into the [760] barn. The plaintiff at the time did not know whether or not the lights were out of order. A switch for turning them on and off was located on the wall of the shop, its location being known to the plaintiff. In view of these facts, the vital question in the case was whether the lights were out of order at the time. Of course if they were in good condition, but were turned off, the plaintiff could not recover for injuries resulting from his .own omission to turn them on. The exact question upon which the case turned was submitted to the jury in these words: “State whether the lights were out of order or whether they were in working order, but were not burning because they were turned off.” They answered: “No evidence to show why they were not burning.” This was a direct and specific finding against the plaintiff upon the precise matter in issue. In order for him to recover he was required to prove— that is, to convince the jury by a preponderance of the evidence—not merely that the lights were not burning, but that they were in bad condition and could not have been lighted by turning on the switch. The jury, being asked whether the lights were out of order, or were in order but were dark because they were turned off, answered that there was no evidence to show why they were nob burning. This is an explicit statement that there was no evidence—that is, no persuasive evidence, no preponderance of the evidence—that the want of light was due to the fault of the defendant. (Burks v. Railway Co., 83 Kan. 144, 109 Pac. 1087.) “Where to a question the jury respond, ‘We don’t know,’ or in any like manner, such an answer is tantamount to a simple denial, for if, from the testimony the jury do not know whether an alleged fact exists, it follows that the testimony does not show that it exists, and therefore for the purposes of the case it does not exist.” (Morrow et al. v. Comm’rs of Saline Co., 21 Kan. 484, syl. ¶2.) That is, such an answer is construed as a finding against the party bearing the burden of proof as to [761] that particular matter. (Croan v. Baden, 73 Kan. 364, 85 Pa,c. 532.) Where the jury find that there is no evidence upon a particular matter the effect is still more obvious. No construction is necessary. . The finding is positive and affirmative that there has been a failure of proof, and where it concerns a fact essential to the plaintiff’s case, it precludes his recovery. Here the plaintiff was required to show to the satisfaction of the jury that the reason why the lights in the shop were not burning at the time of his injury was because they were out of order, and not simply because they were not turned on. The jury found that this fact was not proved, and the finding is fatal to a recovery. The judgment is reversed with directions to render judgment for the defendant.