[666]*666The opinion of the court was delivered by
Garver, J. :
The plaintiff in error contends that the evidence fails to show culpable negligence on the part of the railroad company, and that it does show contributory negligence on the part of the parents of the child injured. The allegations of negligence' contained in the petition are of a somewhat general nature, but specifically charge negligence on the part of the employees in charge of the train in failing to give any warning signals of the approach of the train to the crossing, and also in failing to observe the child upon the track in time to prevent the train from run'ning against or over it. The jury found that the bell of the engine was rung, but the whistle not blown, for the crossing, though the whistle was sounded within an audible distance of the crossing as the train was approaching it. It was also found by the jury that the engineer and fireman, while in their proper places, were not looking ahead intently enough to observe the children upon the track, and this failure on their part, in "not keeping a proper and careful lookout ahead,” is the particular act of negligence found by the jury as the basis of the plaintiff’s right to recover. This finding of negligence, it is claimed, is entirely unsupported by the evidence.
It is evident that the injury complained of was caused by the train. But, outside of mere inferences and conjectures, there is no evidence which shows the proximity of the children to the railroad-track immediately before the train reached the crossing, nor whether they were on, or at the side of, the track when the train struck them. The engineer and fireman both testified that they saw nothing of the children at the crossing, and knew nothing of any one [667]*667being struck or injured at that point until the train arriyed at Kansas City, when information of the accident was conveyed to them by telegraph. The finding of the jury that the children were standing between the rails and were struck by the pilot of the engine has its support in the testimony of a witness who saw the children as they lay upon the ground, within a few minutes after the accident, and who stated that a straight line drawn from where the surviving child lay through two marks upon the ground, which looked as if the body had struck at those points, and extended in a southwesterly direction, would cross the track at a point where the traveled part of the public highway and the railroad-track intersected each other; that the distance from this point in the center of the track to the first mark on the ground was 13 feet, to the second mark 20 feet, and to where the body lay 31 feet. The children were found lying from three to six feet apart, and about five or six feet west of a board fence which extended north from the cattle-guard on the east side of the public road. There were marks on and near this fence, indicating that, when struck by the train, the deceased child was thrown against the fence and rebounded to the place where he lay. The physician who was called in and who testified as a witness for the plaintiff below gave it as his opinion that the injuries, other than those to the head, were caused by contact with the fence. The evidence also shows that the children, when last noticed at the house, were playing with a small wagon, which was, after the accident, found in pieces and scattered along between the rails at and for some distance east of the crossing. It is, in our opinion, extremely doubtful that the jury drew a correct inference from these facts as to the [668]*668situation of the children when struck by the train. There was no mark on or about the engine or cars, or within a distance of 13 feet of where the jury found the children were when struck by the train indicating what position they were in. Even assuming that the two marks upon the ground-were made by the body of the surviving child striking at these points, and that the body was thrown in a direct line from the point where it was struck to where it was afterward found, yet there is no more reason to infer that the child, when struck, was at a point on this line between the rails than that it was on the same line outside of the north rail. It is also inconceivable that the pilot of an engine running at a speed of 30 or 35 miles an hour could strike a child without breaking its legs and without leaving upon them any marks of violence ; or that it could be struck with such terrible force and not thrown with greater violence, and in an entirely different manner, from that supposed in this case. The injuries upon the head, the other injuries of the arm and thighs, the marks upon the ground and the absence of injuries to the legs indicate with more reasonableness that they, in some way, were struck by the side of the train as it rushed past them. However, conjectures of this kind are now unimportant, except as they show the danger of a jury being carried away by the sentiment and sympathy aroused by the narrative of such a sad occurrence, and of their failing to weigh the evidence, under the instructions of the court, with that even-handed impartiality and fairness which should prevail in every case.
Is there any evidence to sustain .the finding of the jury as to the particular acts of negligence upon which the general verdict was based? The burden of the [669]*669proof of negligence rested upon the plaintiff: and, while negligence might be inferred from the other facts which were established by the evidence, it could not be based entirely upon mere presumptions not founded on facts. The learned trial judge very fully and clearly instructed the jury that they could not presume negligence on the part of those in charge of the train from the mere fact that the child was injured, and that the presumption of law, in the absence of evidence to the contrary, was that the engineer and other employees in charge of the train were in the proper performance of their duties. This burden of proof upon the plaintiff, and these presumptions of law in favor of the defendant, were controlling in the entire course of the trial; the verelict and findings of the jury should have been directed and formed by them until they were superseded by evidence which satisfies and convinces. An examination of the record fails to disclose a single line of evidence tending to show that these children should have been seen by the engineer or fireman, if in the proper discharge of their duties, in time to have averted the accident. How close they were to the track, and at what point on the public highway a moment before the train reached the crossing, are left to mere conjecture. On the west side of the highway and extending to within four or five feet of the track was a board fence to obstruct the view of the engineer and fireman, and tending to prevent their seeing a small child on the highway. There is no evidence that they did see them, or that they could have seen them by a careful lookout. Can it be said, under such circumstances, that it may be presumed that the children were on or so near to the track, and were for such a length of time before the train reached them, that the train[670]*670men could and should have seen them in time to have avoided the injury? We think not. It will not do to say, even against a railroad corporation, that the days of pure accident have passed, and that injuries are not sustained except through the culpable negligence of another.
Free access — add to your briefcase to read the full text and ask questions with AI
[666]*666The opinion of the court was delivered by
Garver, J. :
The plaintiff in error contends that the evidence fails to show culpable negligence on the part of the railroad company, and that it does show contributory negligence on the part of the parents of the child injured. The allegations of negligence' contained in the petition are of a somewhat general nature, but specifically charge negligence on the part of the employees in charge of the train in failing to give any warning signals of the approach of the train to the crossing, and also in failing to observe the child upon the track in time to prevent the train from run'ning against or over it. The jury found that the bell of the engine was rung, but the whistle not blown, for the crossing, though the whistle was sounded within an audible distance of the crossing as the train was approaching it. It was also found by the jury that the engineer and fireman, while in their proper places, were not looking ahead intently enough to observe the children upon the track, and this failure on their part, in "not keeping a proper and careful lookout ahead,” is the particular act of negligence found by the jury as the basis of the plaintiff’s right to recover. This finding of negligence, it is claimed, is entirely unsupported by the evidence.
It is evident that the injury complained of was caused by the train. But, outside of mere inferences and conjectures, there is no evidence which shows the proximity of the children to the railroad-track immediately before the train reached the crossing, nor whether they were on, or at the side of, the track when the train struck them. The engineer and fireman both testified that they saw nothing of the children at the crossing, and knew nothing of any one [667]*667being struck or injured at that point until the train arriyed at Kansas City, when information of the accident was conveyed to them by telegraph. The finding of the jury that the children were standing between the rails and were struck by the pilot of the engine has its support in the testimony of a witness who saw the children as they lay upon the ground, within a few minutes after the accident, and who stated that a straight line drawn from where the surviving child lay through two marks upon the ground, which looked as if the body had struck at those points, and extended in a southwesterly direction, would cross the track at a point where the traveled part of the public highway and the railroad-track intersected each other; that the distance from this point in the center of the track to the first mark on the ground was 13 feet, to the second mark 20 feet, and to where the body lay 31 feet. The children were found lying from three to six feet apart, and about five or six feet west of a board fence which extended north from the cattle-guard on the east side of the public road. There were marks on and near this fence, indicating that, when struck by the train, the deceased child was thrown against the fence and rebounded to the place where he lay. The physician who was called in and who testified as a witness for the plaintiff below gave it as his opinion that the injuries, other than those to the head, were caused by contact with the fence. The evidence also shows that the children, when last noticed at the house, were playing with a small wagon, which was, after the accident, found in pieces and scattered along between the rails at and for some distance east of the crossing. It is, in our opinion, extremely doubtful that the jury drew a correct inference from these facts as to the [668]*668situation of the children when struck by the train. There was no mark on or about the engine or cars, or within a distance of 13 feet of where the jury found the children were when struck by the train indicating what position they were in. Even assuming that the two marks upon the ground-were made by the body of the surviving child striking at these points, and that the body was thrown in a direct line from the point where it was struck to where it was afterward found, yet there is no more reason to infer that the child, when struck, was at a point on this line between the rails than that it was on the same line outside of the north rail. It is also inconceivable that the pilot of an engine running at a speed of 30 or 35 miles an hour could strike a child without breaking its legs and without leaving upon them any marks of violence ; or that it could be struck with such terrible force and not thrown with greater violence, and in an entirely different manner, from that supposed in this case. The injuries upon the head, the other injuries of the arm and thighs, the marks upon the ground and the absence of injuries to the legs indicate with more reasonableness that they, in some way, were struck by the side of the train as it rushed past them. However, conjectures of this kind are now unimportant, except as they show the danger of a jury being carried away by the sentiment and sympathy aroused by the narrative of such a sad occurrence, and of their failing to weigh the evidence, under the instructions of the court, with that even-handed impartiality and fairness which should prevail in every case.
Is there any evidence to sustain .the finding of the jury as to the particular acts of negligence upon which the general verdict was based? The burden of the [669]*669proof of negligence rested upon the plaintiff: and, while negligence might be inferred from the other facts which were established by the evidence, it could not be based entirely upon mere presumptions not founded on facts. The learned trial judge very fully and clearly instructed the jury that they could not presume negligence on the part of those in charge of the train from the mere fact that the child was injured, and that the presumption of law, in the absence of evidence to the contrary, was that the engineer and other employees in charge of the train were in the proper performance of their duties. This burden of proof upon the plaintiff, and these presumptions of law in favor of the defendant, were controlling in the entire course of the trial; the verelict and findings of the jury should have been directed and formed by them until they were superseded by evidence which satisfies and convinces. An examination of the record fails to disclose a single line of evidence tending to show that these children should have been seen by the engineer or fireman, if in the proper discharge of their duties, in time to have averted the accident. How close they were to the track, and at what point on the public highway a moment before the train reached the crossing, are left to mere conjecture. On the west side of the highway and extending to within four or five feet of the track was a board fence to obstruct the view of the engineer and fireman, and tending to prevent their seeing a small child on the highway. There is no evidence that they did see them, or that they could have seen them by a careful lookout. Can it be said, under such circumstances, that it may be presumed that the children were on or so near to the track, and were for such a length of time before the train reached them, that the train[670]*670men could and should have seen them in time to have avoided the injury? We think not. It will not do to say, even against a railroad corporation, that the days of pure accident have passed, and that injuries are not sustained except through the culpable negligence of another. This unfortunate occurrence appeals strongly to human sympathies, and invites the aid of the helping hand to alleviate suffering and bereavement; but by no such consideration should the rights of parties be measured in courts of justice. For every wrong there should be an adequate remedy, but for injuries inflicted without wrong there is no legal compensation. The law does not justify the mulcting of a party in damages simply because he may have been the innocent cause of an injury and consequent loss to another. It is true the jury in this case were not concluded by the testimony of the engineer and fireman that they were on the lookout, and did not see the children upon the track or about the crossing; but if their testimony be laid out of the case entirely, there is nothing to show what they did see, or could or should have seen, if at their posts in the proper performance of duty. In that situation the jury should have been governed by the rules of law laid down in the instructions of the court, which required the plaintiff to prove negligence as a basis of a right to recover, and wdiich shield the defendant by the presumption that its employees were in the proper performance of duty and operating the train with due care. Beyond the fact of the injury and the location of the children thereafter, there is no direct proof of any fact tending to show how or why the accident occurred. The inferences drawn from the testimony are, for the most part, based upon other inferences and presumptions which just as reasonably warrant [671]*671different conclusions. Mere theories and inferences' do not authorize a verdict in a case of this nature, unless they are the only conclusions which can reasonably be drawn from facts proven. (Carruthers v. C. R. I. & P. Rly. Co., 55 Kan. 600, 40 Pac. Rep. 915; Railway Co. v. Henrice, 92 Pa. St. 431; United States v. Ross, 92 U. S. 281.) As the verdict of the jury was based upon this finding of negligence, we are of the opinion that it is not supported by the evidence, and should have been set aside and a new trial granted. It is not a case of conflicting evidence, but there is an entire absence of evidence to prove the fact found.
Another error assigned is, that the evidence shows contributory negligence on the part of the parents of the children. It is contended that because they lived in such close proximity to the railroad, on which frequent trains were passing every day, the exercise of ordinary care required such watchfulness as would 'have prevented the children from wandering to or upon the track. We cannot agree with the counsel in this contention. We do not understand that the law is so severe as to require families situated as this one was to surround their infant children with impassable barriers, or to employ a custodian or nurse who would keep them away from'danger. While the house and yard were not inclosed with a fence or other obstruction to prevent the children from getting upon the public highway, yet the testimony does not show that they were inclined to wander from home, or were in the habit of going toward the railroad, or that any immediate danger in that respect was to be apprehended. The evidence, we think, shows that these parents were reasonably watchful, and were at this time in the exercise of ordinary care. In any event, we think the evidence shows a case of [672]*672such, nature as to make the question of contributory negligence a proper one to be determined by the jury. (Smith v. A. T. & S. F. Rld. Co., 25 Kan. 742; A. T. & S. F. Rld. Co. v. Calvert, 52 id. 547.)
There is one other matter of which complaint is made to which we will refer before closing this opinion. The petition alleged that the plaintiff had been duly appointed by the probate court of Douglas county administrator of the estate of Oden Toyne, deceased, and that he had qualified as such. The answer in the case was a general denial, unverified. On the trial the railroad company offered to show that Oden Toyne died possessed of no estate either in Douglas county or elsewhere, and that, consequently, the probate court of Douglas county having no jurisdiction or authority to appoint an administrator, the appointment of the plaintiff was void. This offer was refused by the court. We think the ruling, was proper. This was simply an attempt to show that the jAaintiff did not have the legal capacity to maintain this action, because he was not the administrator of the estate of the deceased. Section 108 of the code provides that all allegations of any appointment or authority shall be “taken as true unless the denial of the same be verified by the affidavit of the party, his agent, or attorney.” The allegation of the due appointment of one as administrator of an estate imports something more than the mere fact of his being named as such ; it implies legal authority for the appointment, and, when not denied under oath, the trial proceeds upon the conclusive admission that the party thus claiming to act by virtue of such an appointment or authority has had the same legally conferred. (Walker v. Fleming, 37 Kan. 171; Rogers v. Coates, 38 id. 232.) The case of Perry v. St. J. &c W. Rld. Co., 29 Kas. 420, to [673]*673which we are referred by counsel for plaintiff in error, has no application in this case, for there the validity of the appointment of the plaintiff as administrator was challenged by the pleadings, and was properly made an issue in the case.
Other rulings of the court are complained of in the brief of the plaintiff in error, but as they will probably not arise upon another trial it is not necessary to consider them.
Judgment will be reversed, and the case remanded for a new trial.
All the Judges concurring.