Martin, C. J.
1. Negligence, burden of proof. I. Some of the allegations of negligence find no support in the evidence ; but it was alleged that the tender was not sufficiently and properly secured and fastened to its trucks ; that the track was in bad order and condition and unsafe for trains running at the excessive speed at which the train in question was propelled on a sharp curve ; that the ties were decayed, the rails worn and too light, and the outer rail on the curve was nearly level with the inner rail, whereas it should have been considerably higher. There is no evidence of the insufficient fastening of the body of the tender to the trucicg except tiie circumstance that it left them, turned upside down, and was thrown 20 to 40 feet to the left of the track. There is some evidence, however, as to the defective condition of the track in some of the particulars above named, and we are not clear that this condition had no agency in producing the disaster to the train. The witnesses for the Company did not account for the derailment, but said it was a mystery. Under the pleadings and the allegations of negligence contained in the petition it devolved upon the plaintiff below in the first instance [317]*317only to prove the derailment, the injury of the passenger thereby, that death occurred from the injury, and that the deceased left a widow or kindred surviving him ; and it then became incumbent upon the Company, in order to escape liability, to show that the derailment resulted from inevitable accident or something against which no human prudence or foresight on the part of the Company could provide. S. K. Rly. Co. v. Walsh, 45 Kan. 653, 659 and cases cited; Mo. Pac. Rly. Co. v. Johnson, 55 id. 344, 345. A prima facie case of negligence was made out by the plaintiff below, and we cannot say in the face of the general verdict that it was overthrown by the evidence introduced on the part of the Railroad Company.
2. Evidence sufficient and errors immaterial. II. The plaintiff in error contends that there is no evidence that Fuller was injured in the wreck, nor that his death was attributable thereto. The conduct of Fuller seems difficult to comprehend. In the excitement attending such a calamity it is not strange that a person might be injured wnthout knowing it for a considerable time thereafter; but Fuller told Doctor Wasson the next day that he escaped unhurt. He never made any claim against the Railroad Company, and did not mention the wreck to his physicians ; although he complained of a pain in the side or back to Frankhouser shortly after the wreck, to his sister upon his arrival at Quenemo, and to his wife shortly afterward in Kansas City. Nothing in the nature of narrative from him was admissible in evidence as to the cause of the pain in his back or side, as to his lameness, or as to other symptoms indicating a spinal injury or other ailment ; but, from the complication of disorders to winch he was subject and which seemed to be greatly aggravated in the closing months of; his [318]*318life, it seems probable that he did not himself consider the railroad wreck, but la grippe, as the cause of his increased suffering. Yet it may have been a spinal injury ; and his symptoms were perhaps better evidence-than his own opinion respecting his ailment. The general verdict is equivalent to finding that Fuller was injured in the wreck and that death resulted therefrom ; and we cannot affirm that this theory is" entirely unsupported by the evidence, especially after the approval of the verdict by the trial court. Many questions are raised upon the competency of evidence,, the form of the hypothetical questions, and the nature of the expert testimony. We have examined all of them, but do not think that any substantial and material error was committed by the Court in the admission or rejection of testimony. The Court refused to submit certain of the particular questions of fact requested by the defendant below. We think some of them might have been submitted with propriety ; but they were not controlling in character, and if all had been answered in the manner most favorable to the plaintiff in error the general verdict would not have been affected, nor the trial court nor this .Court further enlightened thereby. Upon the whole we find no material error in the record and the judgment must be affirmed.
Allen, J., concurring. Free access — add to your briefcase to read the full text and ask questions with AI