Atchison, Topeka & Santa Fe Railway Co. v. Singleton

82 P. 1134, 72 Kan. 688, 1905 Kan. LEXIS 404

• Court: Supreme Court of Kansas
• Decided: December 9, 1905
• Docket: No. 14,380
• Status: Published

Opinion

Per Curiam:

The jury evidently did not believe that part of the testimony of the engineer and fireman which indicated that the fire was already burning when the train passed. Having seen the witnesses and observed their conduct upon the witness-stand, and having heard all the evidence in the case, the jury may have been justified in its disbelief. From other portions of the testimony of these witnesses, and from the testimony of other witnesses, the jury had the right to conclude that engine No. 289 set the fire. (Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876.)

There is abundant and unquestioned evidence to support all the statements of the twelfth finding of fact except that the train was started too fast, and there is substantial evidence from which an inference of starting too fast fairly may be derived. Something of an appearance of haste at the switch is disclosed; the fireman seems to have been quite busy in rousing the energy of the fire, and with a full load, on a slight up grade, a speed of from twelve to fourteen miles per hour was soon attained.

It is true, as plaintiff in error asserts, that findings Nos. 13 and 14, asked by the defendant itself, were outside the issues and have no effect upon the verdict —the plaintiff’s amended petition charging no negligence except in management and operation, and the instructions to the jury making no reference whatever to defective machinery.

The judgment of the district court is affirmed.