Kansas Pacific Railway Co. v. Peavey

29 Kan. 169

• Court: Supreme Court of Kansas
• Decided: January 15, 1883
• Status: Published

Opinions

The opinion of the court was delivered by

Hobton, C. J.:

,1' ñabüityfno The petition alleges substantially that the defendant in error (plaintiff below) was employed as a brakeman and yardman by the railway company to work at Armstrong, in this state, and while engaged in attempting to couple two cars together, on the 23d day of August, 1879, was, without his fault, injured through the negligence of one of the engineers of defendant below, in carelessly and recklessly shoving and pushing a car against him, whereby one of his hands was caught between two cars, and greatly injured and mangled. Although the petition alleges that the engineer was incompetent, and that the company employed him without due caution, yet no evidence was offered in support of these latter allegations, and the case went to the jury solely upon the supposition that a liability had been incurred under the statute. (Laws 1874, ch. 93.) The railway company set up in its answer, among other defenses, a contract, containing a waiver and release fully covering all liabilities imposed by the statute. To this defense plaintiff filed his demurrer, alleging the contract was contrary to law, against public policy, and void. This-demurrer was sustained by the court, and ■we are confronted at the threshold of the case with the question of the validity of this special contract. Prior to the statute of 1874, the rule of the common law prevailed in this state, that a master was not liable to his servant for an injury happening in consequence of the negligence of a fellow-servant engaged in the same general employment, unless charged with some degree of fault or negligence in the selection or retention of the fellow-servant. The legislature of the state has, however, changed the common-law rule, and the statute makes a railroad corporation liable for the negligence of one employé causing injury to a eo-employé,- without regard to the negligence of the company in selecting or retaining the employé. Whether this legislation be wise, or not, it is not within our province to determine. We must assume that the legislature had satisfactory reasons for changing the rule of the common law, and having adopted the statute, as we may assume for wise and beneficial purposes, we do not think a railroad company can contract in advance for the release of the statute liability. It is a familiar principle of law that a contract made in violation of the statute is void, and also that agreements contrary to the policy of statutes are equally void. There are exceptions: thus, it is no part of the policy of the law to encourage frauds, by releasing the fraudulent party from the obligation of his contract, and so a party shall not set up his own illegality or wrong to the prejudice of an innocent person. (Bemis v. Becker, 1 Kas. 226.) Again, he who prevents a thing being done, shall not recover damages resulting from the non-performance he has occasioned. The plaintiff below is not within these or other exceptions, and therefore the ruling of the district court upon the demurrer must be sustained. Further, while the reasons for the rule of the common law) that the master ought not to be responsible for injuries inflicted upon one servant by the negligence of another servant in the same com-' mon employment, seem plausible and correct theoretically, yet we may assume that the legislature did not find the practical operations of the rule as affording sufficient security to persons engaged in the hazardous business of operating railroads ; that for the protection, of the lives and limbs of the employés of such companies,-the legislature deemed it necessary to enact the statute making these companies liable for all damages done to any of their employés in consequence of the negligence of a co-employé. Now if the statute was enacted for the better protection of the life and limb of railroad employés, it would be against public policy for the courts to sanction contracts made in advance for the release of this liability, especially when we consider the unequal situation of the laborer and his employer. Take this illustration: In some states — and in our own — the. owners of coal mines which are worked by means of shafts, are required to make and construct escapement shafts in each mine, for distinct means of ingress and egress for all persons employed or permitted to work in the mines. Such a statute is for the benefit of employés engaged in working in coal- mines; but the owner of such a mine would not be permitted to contract in advance with employés for operation of the mine in contravention of the provisions of the statute. The state has such ah interest in the lives and limbs of its citizens, that it has the power to enact statutes for their protection, and th9 provisions of such statutes are not to be evaded or waived by contracts in contravention therewith-. The general principle deduced from the authorities is, that an individual shall not be assisted by the law in enforcing a contract founded upon a breach or violation on his part of its principles or enactments; and this principle is applicable to legislative enactments, and is uniformly true in regard to all statutes made to carry out- measures of general policy; and the rule-holds equally good, if there be no express provision in the statute peremptorily declaring all contracts, in violation of its provisions void, in regard to. statutes intended generally to protect .the public interests, or to vindicate public morals. (Sedgwick on Constr. of Stat. and Const. Law, 2 ed., 337, 338.) With our interpretation of the statute of 1874, and the fairly-inferred intent of the legislature in enacting it, the omission therefrom of the addition in the Iowa statute, “and no contract which restricts such liability shall be legal or binding,” does not empower a railroad company to evade its liability by contract.

Counsel refer to Rld. Co. v. Petty, 25 Ind. 413, permitting a land-Owner to waive by contract a liability imposed by statute upon a railroad company for injuring animals unless its road is securely fenced. That decision may rest upon the well-known maxim that “He who prevents a thing being done, shall not recover damages resulting from the non-performance he has occasioned.” Clearly, where the owner of land through which a railroad passes, has undertaken with the company to inclose the road with a lawful fence, he ought not to recover from the company damages for an injury to his stock which results wholly from his failure to perform his contract.

Upon the trial, plaintiff below was asked by his counsel the following question:

Q. “Now I will ask you again, Mr. Peavey, judging from your experience, would you have been injured upon that occasion, if that car had approached you at the usual and proper rate of speed for making couplings?”

The question was objected to by the railway company, but the objection was overruled, and the answer was given:

A. “I don’t think I would.”

Another witness, Meyers, was asked by the same counsel the following:

Q. “I will ask you to state whether or not it is a fact that brakemen in making couplings of that kind are or are not compelled to rely to a great extent upon the prudence of the party handling the engine?”

Like objections were made, and overruled. The answer was:

A. “Yes, sir; they are.”

2. opinion, míe. The objections to the questions cited ought to have been sustained, as it is a general rule that opinion is inadmissible on questions which can be decided by the jury ^ fac(-,s_ ^ brakeman brought an action for injuries received in coupling the engine of the train he was engaged in operating to a car laden with timber. A witness, who was a railroad agent, and had been two years a brakeman, was asked this question: “What is the proper way to couple cars when timber projects?” The court sustained an objection to the question, and refused to permit the witness to answer. (Hamilton v. Rld. Co., 36 Iowa, 31.)

A brakeman while attempting to couple two loaded freight cars to the mail car, was crushed by the bumper of the mail car overriding that of the freight car and permitting the platform to come in contact, of which injury he died. On the trial to recover damages, the depositions of various witnesses who had been brakemen, baggage masters, and conductors lipón railroads, were read in evidence, giving their opinions that if the drawheads or bumpers had been properly matched there would have been no danger of one overriding the other, and that if the drawheads had been properly matched there would have been no danger of the person being crushed between the cars in making a coupling. The matters referred to in the depositions were held not proper subject of opinion. (Muldowney v. Railway Co., 36 Iowa, 462.)

A brakeman brought an action for injuries received while coupling cars. The opinions of experts that he was careless in the matter of doing the work were deemed inadmissible. (Hopkins v. Rld. Co., 78 Ill. 32.)

In an action for injuries sustained while attempting to oil a part of the machinery of a steam engine, an expert engineer was asked if he thought that the plaintiff in oiling that part could have been injured unless he was careless. This was held improper. (Buxton v. Somerset Potters’ Works, 121 Mass. 446; Bixby v. Rld. Co., 49 Vt. 127; Hill v. Rld. Co., 55 Me. 438; Coons v. Railway Co., 65 Mo. 592; 2 Thompson on Negligence, 799; Monroe v. Lattin, 25 Kas. 351; City of Parsons v. Lindsay, 26 Kas. 426.)

“The experience of courts with the testimony of experts has not been such as to impress them with the conviction that the scope of such proof should be extended. Such testimony is not admissible in any case when the jury can get along without it, and is only admitted from necessity, and then only when it is likely to be of some value.” (Morrigan’s Appeal? 29 Mich. 5.)

The matters upon which the opinions were giveri in the evidence objected to, were on questions which could have been decided by the jury on the facts; and of the facts, after a full hearing thereof, they were the competent judges.

Counsel for plaintiff below suggest that even if the questions asked were incompetent, the error was immaterial. As to the second question, we might assent; but we think differently of the opinion of the injured party. His evidence was likely to have exercised gre'at influence. At least in a close case like this, it must have been productive of some effect.

Among other instructions given is the following:

“If the jury believe from the evidence that the engineer’s conduct was the proximate cause of the injury complained of, that the plaintiff’s conduct was the remote cause of injury, then the plaintiff ought to recover. But if the jury believe from the evidence that the conduct of the engineer was the remote cause of the injury, and that of the plaintiff the proximate cause of the injury, then the plaintiff cannot recover.”

This instruction, especially in the absence of the qualifying word “negligent” before the word “conduct,” was erroneous within the views expressed in Rld. Co. v. Plunkett, 25 Kas. 188; and as in that case, so here — if the plaintiff below was guilty of the negligence at all, it was certainly as near as to the injury as was that of the company.

The court also instructed the jury that—

“The plaintiff was bound to exercise ordinary care and prudence in attempting to fasten the coupling to the cars, and though the jury believe from the evidence, that the coupling in question was dangerous, still1, if they further believe from. the evidence that the accident in question is attributable to the want of ordinary care on the part of the plaintiff, then he cannot recover unless the jury further believe from the evidence that the defendant was guilty of such gross negligeuce as implies willful injury. The jury are further instructed if they believe from the evidence that the plaintiff was injured (being at the time an employé of the defendant) in consequence of the negligence of the engineer in charge of the engine, and the plaintiff at the time was free from any contributory negligence, the plaintiff is entitled to recover.”

• ,. faol’S'evi-to dence. A part of this instruction was misleading, from the fact that it was apparent from the evidence that the engineer was not guilty of such gross negligence as implies willful injury. The most that can be charged against the engineer, if anything, is that he was guilty of negligence in the application of too much steam to the engine, or in the management of the engine whereby the car cut off was sent back at a fast and unusual rate of speed. The jury found as a matter of fact,that the plaintiff below had control of the engineer as to signals, and that the engineer obeyed the signals to start, stop, and cut off. Instructions should, as far as possible, conform to the actual facts in proof, and the giving of abstract propositions of law, however good in themselves, if not applicable to the case on trial, often distracts and confuses the jury, and in cases like the one at bar, is liable to be greatly prejudicial. As there was mo evidence tending to show gross negligence implying willful injury on the part of the railway company or its engineer, the trial court ought not to have used such terms in its direction.

rule of\ no¿ adopted. „ ,. B‘jmy0™ iiSn toinednotsus' Further, while it is settled in this state that a party may recover for injuries done to him or his property, caused by the negligence of others, even if his negligence is slight, nevertheless this court has not adopted what is generally called the rule of comparative negligence. Under the law as settled in this state, ordinary negligence on the part of á plaintiff will defeat a recovery except in the case of wanton or willful injury. Where two parties, of each of whom the exercise of ordinary care is required, are guilty of negligence contributing to the injury of 9ne of them, the injured party cannot recover damages therefor from the other on the sole ground that his negligence was less than that of the other, and generally the mere fact that the plaintiff has been guilty of less negligence than the defendant will not authorize a recovery on his part. And if; in the case at bar, the company or its engineer was guilty of slight negligence only, the plaintiff below would hot have any right to recover, even if he were not guilty of any negligence at all, for in this class of cages a railroad company is liable only for ordinary negligence, and not for slight negligence. Therefore, if the plaintiff be-^ow himselt was guilty of ordinary negligence contributing to the injury, he cannot recover, if the negligence of the railway company or its engineer was merely greater than his, for the plaintiff below must have exercised ordinary care, and not have been guilty of ordinary negligence. Upon a new trial, the instructions of the court below will conform to the views herein expressed.

6 Excessive veSiSit aside. Within the prior decisions of this court, the damages awarded by the jury, are excessive. The plaintiff below lost the thumb and first finger.of his right hand; he was up a little over a month and could not d0 anything for three or four months, but he was at no expense for surgeons, as medical assistance was furnished him by the railway company. He spent a little for drugs, and* was nursed by his wife. In Railway Co. v. Hand, 7 Kas. 380, the injured party was hurt in the third finger.of his right hand, causing a slight deformity and some loss of power in the hand; besides other bruises, he had received an injury to his lung, which caused him some uneasiness and rendered him more liable by exposure to attacks of a pulmonary character. His counsel claimed, in the argument of that case before this court, that the evidence adduced tended to show that the time of the injured person, while suffering from the immediate effects of his injuries, was worth $1,800; that his board and physician’s bills would carry these figures to $2,000. The verdict was $5,000. Yet, Kingman, p. J., speaking for the court, said: “An examination of the evi-. dence has convinced us that the damages awarded are so excessive as to show plainly that the verdict was given under the influence of passion or prejudice, and ought to be submitted to the judgment of another jury.” In Railway Co. v. Milliken, 8 Kas. 647, it was shown that the yardman at Ells-worth was assisting in making up a train at that point; that while engaged in coupling cars, his hand was caught between the drawheads of the cars and so crushed that amputation was necessary. Mr. Justice Brewer, for the court, said in that case: “Where the sole permanent injury was the loss of a hand, which was amputated just above the wrist, without any protracted sickness or lengthy confinement, an award of $10,000 shocks the sense of right. ... In whatever light we look upon this verdict, it seems to us to be largely in excess of a fair compensation for the injury.” In Railway Co. v. Young, 8 Kas. 659, the injury- was the loss of a hand, happening while the employé of the railway company was attempting to couple cars. The verdict was $9,000. This was also held excessive. If an award of $10,000 for the loss of a hand taken off at the wrist was so excessive as to shock the sense of right, (Railway Co. v. Milliken, supra,) an award of $6,500 for the loss of the thumb and finger of a hand, clearly indicates passion or prejudice on the part of the jury. Counsel for defendant in error.refer to the case of Railway Co. v. Young, 19 Kas. 489, where a majority of this court decided not to set aside a verdict of $10,000. The first time that ease was before this court it was held that $9,000 damages were excessive. It was then submitted to the judgment of another jury. Upon the second trial, the jury gave $10,000. A court must hesitate greatly before twice setting aside a verdict on- the sole ground of excessive damages; and in view of the many years (nearly ten) elapsing between the injury and the final verdict in that case, and in view further of the fact that two juries had decided in favor' of so large damages, a majority of this court thought they ought not to disturb the verdict solely for excessive damages. That case, owing to these circumstances, is not parallel with this. Following the prior decisions of this court, the amount of damages given by the jury is so largely in excess of any fair compensation for the injury inflicted ás to require us to interfere, and set the .verdict and judgment thereon aside.

Other questions are elaborately discussed in the briefs, but sufficient has been said already to indicate the views of the court as to the declaration of the law governing the case upon another trial.

The judgment of the district court must be reversed, and the cause remanded. .

Brewer, J., concurring.