The opinion of the court was delivered by
Brewer, J.:
This was an action brought by Pointer in the district court of Leavenworth county, for personal injury by being knocked down and run over by the cars of plaintiff in error, near the railroad depot in the city of Leavenworth, [45]*45on the 4th of February, 1870. The venue was changed to Atchison county, and the cause was tried before a court and a jury, in June, 1873, and the jury returned the following special verdict:
“We the jury find for a special verdict in the above entitled action, the following:
“First, That on or before the 4th of February, 1870, the plaintiff was passing across and along the railroad track of the defendant, in that part of the city of Leavenworth traversed by the road of the defendant, and while so passing at or near the junction of Water street with Chestnut street, which streets are nearly at right angles with each other, the plaintiff was knocked down and run over by the cars of the defendant. That two passenger cars, one baggage car, and a locomotive tender passed over the body of the plaintiff, and he was pulled out from between the wheels of the engine and tender in a bruised, wounded and otherwise injured condition of body, and in an unconscious state of mind.
• “Second, That by said cars knocking him down and running over him, the plaintiff had his shoulder dislocated, and had two of his ribs broken. That in consequence of the injuries then received by the plaintiff, he .suffered great pain and agony for a long time, and was confined to his bed for a period of about three months, and remained feeble and weak for a period of about six months, and during all of'said last-mentioned time was under the care and direction of a physician. That the plaintiff is a man between fifty and sixty years of age, and in consequence ■ of said injuries his health and strength are permanently impaired.
“Third, That it was necessary for him to procure said medical attendance, and the cost of the same was five hundred dollars.
“Fourth, That the road of the defendant at the place the plaintiff was struck and injured, was at that time commonly used by persons for passing over and across the same from the city of Leavenworth to the ferry-landing, the same being a public ferry across the Missouri river at that point, and the only means of travel at that point between the west and east banks of the Missouri river; and the same had been so used before the location of the defendant’s road at that place, and continued to be so used, with the knowledge of and without objection by the defendant, up to and including said date, and that there was no way of reaching the ferry except by cross[46]*46ing the road of the defendant at that or some point near that place.
“Fifth, That the streets of the city had never been graded or improved at that or any other place leading to the ferry-landing, so as to show on the surface of the ground where they wer.e.
“Sixth, That the injuries occurred to the plaintiff at a place at which persons were in the habit of passing and repassing continually, with the knowledge and without objection on the part of the defendant.
“Seventh, That the place where the plaintiff was injured was on' ground which had been used by the public as a thoroughfare from the city of Leavenworth to the landing of the public ferry across the Missouri river ever since the year 1855 up to and.inclusive of the day of the injury, and which ground formed part of a tract of territory which, by ordinance of the city of Leavenworth, approved the 21st of October, 1863, was created into a street of said city, designated as Water street.
“FJighth, That the train so moved was being backed southward with an engine, upon which the brake was out of repair, so that such brake could not be worked, and was wholly useless to aid in stopping the train; that there were no brakemen at any of the other brakes on the train to use them in controlling the train, and no flagman or other person or thing on the train to warn persons of danger or to warn the engineer; nor was there any flagman at any point on the track between the depot from which the train moved to the place where the plaintiff was injured, nor was there any whistle blown on that train, but a bell was rung by them.
“Ninth, That the plaintiff at the time of the injury was with his back to the approaching train, at a point where there was much noise other than that made by the train, and was unconscious of the approach of the train. That when approaching the road near the same, plaintiff looked up the track toward the depot, and no train was then moving.
“Tenth, That if there had been a brakeman or flagman on the rear end of the train, or at any point on or near the track and near the moving train, he could easily have seen the danger the plaintiff was in in time to have warned the engineer and caused the train to stop before the injury, or could have apprised the plaintiff of the impending danger in time for him to escape.
[47]*47“Eleventh, That the train was moving backward, and there was no person on the rear end of the train to warn, persons of danger, or to notify the engineer to check the train.
“Twelfth, That the injury to the plaintiff was caused immediately by the defendant’s failing to use ordinary care, and by its gross negligence in the manner of the running of the train at that time and place, and by the failure of the defendant to keep a lookout of any kind for persons who might be on the track.
“Thirteenth, That the plaintiff was guilty of negligence contributing to the injury.
“Fourteenth, That the injury to the plaintiff was caused by a failure on the part of the defendant through its agents and servants to use ordinary care in moving the locomotive and train at that time and place. That the place where the plaintiff was injured was within the-corporate limits of the city of Leavenworth, which was a city of over twenty thousand inhabitants at that time, and at a place where persons, men, women and children, had been and were in the. habit of passing and crossing with the full knowledge of the defendant, and without any protest or objection on its part.
“Fifteenth, That the only employes of the defendant on the train at the time the plaintiff was injured were three men — an engineer, a baggage-master and a yard-master — and these three employes were on the engine, the most remote point on the train from the rear end thereof, and from which place they could not see the track for forty or fifty feet from the rear end of the train.
“Sixteenth, That on or before the 4th of February, 1870, the Kansas Pacific Railway Company was the owner of and was operating its railroad from the city of Leavenworth to Lawrence.
“Seventeenth, That the ground occupied by the aforesaid Railway Company, running south from the depot in Leavenworth, was formerly uneven, and only passable for foot passengers. That the Railroad Company graded said ground, making it level for the purpose of laying their track, and that in so doing, in conjunction with the Missouri Pacific or Missouri River Railroad, so graded said ground about the width of two hundred feet from and running parallel with the Missouri river at the point whereat or about the said injury occurred, and that there was a space of level ground between the Pacific tracks and the Kansas Pacific Railway tracks of fifty feet, upon which foot passengers could walk at [48]*48the said point, and that on the west side of the Kansas Pacific track, apd running parallel thereto, was a road that was passable for wagons and teams; said road was about thirty or forty feet wide, and bounded on the west by a precipitous bluff about fifty feet-high. Said road ran south about one thousand feet from the depot, and was used at and previous to the time of the plaintiff’s injury, as h thoroughfare by which the public passed to the ferry across the Missouri river, a point nearly opposite the landing of the public ferry crossing the Missouri river between Kansas and Missouri, at which point the travel crossed the track of the Kansas Pacific and Missouri Pacific railways to reach the aforesaid ferry.
“Eighteenth, That the pláintiff could have reached the ferry by keeping west of defendant’s ‘tracks’ to a point directly opposite the ferry landing, and thence east across said railway, not more than ten feet wide, to said ferry.
“Nineteenth, That the plaintiff was passing upon the track Avith his head down, and persons near by, apprehending that he Avas in danger, called to him with a loud/voice warning him of his danger — these persons standing, one upon the cars of the Missouri Pacific Raihvay Company, about fifty feet away, and the other in the space between the tracks of the Missouri Pacific and the Kansas Pacific railways. That the whistle of the locomotive of the Missouri Pacific Railway was blown, AA^hich was about one hundred feet from the plaintiff. That his attention was not attracted by the signals of warning, nor did he look up, but kept in the same position Avith head bent forward until he Avas struck in the back by the ‘bumper’ or ‘draAvhead’ of the rear car upon the end next to him, when, from the force of the blow he fell forward, when the train — tAvo passenger cars, one baggage car, and the engine and tender — passed over him.
“Twentieth, That the defendant’s train was handled oh the day of the injury in the usual manner in which said train was handled Avhile backing up to be switched and left on the side track. The train was in charge of the yard-master, and neither he or any of the persons on the train kneAv the plaintiff was upon the track, and in the AA^ay of the train, until after his injury.
“Twenty-first, That on the 21st of October, 1863, the council of the city of Leavemvorth passed an ordinance laying out a street called ‘Water street,’ and there is no evidence that anything more was done in the premises by the authority aforesaid.
[49]*49“We the jury find for the plaintiff, and assess his damages at five thousand dollars.”
Before the jury was discharged, the defendant requested in writing that the court direct the jury to make further findings of fact, which was refused. The motion for a new trial was duly made by the defendant, and overruled, and defendant’s motion for judgment was also overruled. The court rendered a judgment in favor of Pointer upon such special verdict, for the sum of five thousand dollars, and costs of suit, and defendant brings its petition in error in this court.
1. Management train?vofoss negligence. Upon this case two principal questions arise: First, is such negligence shown on the part of the company as, independent of the conduct of Pointer, will render it liable for the damages sustained ? and second, does there appear such contributory negligence on the part of Pointer as will defeat his recovery ? With the first question we ^|e trouble. The jury found specifically (12th finding) that the injury was caused by the gross negligence of the company. And if we turn to the other findings in which the circumstances of the injury are narrated, or to the testimony in the case, the whole of which is before us, we find ample warrant for this finding. A train .consisting of two passenger and one baggage car, a tender and locomotive, is started backward over a public crossing in a populous city, with the brake on the engine out of repair, and useless, with no brakemen at any of the other brakes on the train, with but three persons on the train, and all of them in the locomotive, with no flagman on the rear end of the train, or at the crossing, to give warning to persons on the track, -or to the engineer, without the blowing of a whistle, (though with a ringing of a bell,) and along a track which from the locomotive could not be seen for a distance of forty or fifty feet from the rear of the train. Add to this, that there was at the time much noise other than that made by the train, and we think a jury might properly say there was gross negligence. [50]*502 ordinary negligence. 3. contributory negligence.
[51]*51
5. Special verdionts.
[52]*52
7 construction instructions ana testimony.
[49]*49The other question is embarrassing and difficult. By the 13th finding the jury say “that the plaintiff was guilty of [50]*50negligence contributing to the injury.” Did they mean thereby such negligence as will defeat a recovery? Do the facts, as shown by the other findings, or the evidence, disclose such negligence? As a general rule, whenever the word “negligence” is used without any qualifying term, we understand that ordinary negligence is meant; and w^ere the triple distinctions of slight, ordinary, an(j grogg negligence are recognized, as in this state, ordinary negligence on the part of the plaintiff will, except perhaps in the case of wanton and willful injury, defeat a recovery. It is settled in this state that where the negligence of the plaintiff is but slight, or only remotely contributing to the injury, it will not defeat a recovery. K. P. Rly. Co. v. Rollins, 5 Kas., 167; Sawyer v. Sauer, 10 Kas., 466. It seems to us also correct to hold, that the onus probandi, as •to the negligence of the plaintiff, is on the defendant; that if the record shows negligence on the part of the defendant, and is silent as to the conduct of the plaintiff, it makes out a case for recovery. We are aware of contrary decisions, and 'that in some states it is held that the burden is on the plaintiff to show affirmatively that he exercised due care, and was without fault. But if it is shown that a party has done wrong, and caused injury thereby, is not a prima facie case for compensation made? Logically, the wrongdoer should always compensate, and the wrong and the injury always entitle to relief. When the wrong of both parties contributes to the injury, the law declines to apportion the damages, and so leaves the injured party without any compensation. This is not strictly justice. The wrongdoer causing injury ought not to be released from making any compensation, simply because the injured party is also a wrongdoer, and helped to produce the injury. But many considerations, especially the difficulty of correctly apportioning the damages, and determining to what extent the wrong of the respective parties was instrumental in causing the injury, uphold the rule so universally recognized, that where the wrong, the negligence of both parties, contributes to the injury, the law will not [51]*51afford any relief. But if the wrongdoer ought always to compensate for the injury he has wrought, and is relieved from the obligation to compensate only by the fact that the wrong of the injured party helped to cause the injury, it is incumbent on him to‘show such wrong. It is matter of defense, to avoid the consequences of his own wrong. In the case of the U. P. Rly. Co. v. Hand, 7 Kas., 388, the question was incidentally noticed, and the intimation was in favor of the views herein expressed. See also Shearman & Redfield on Negligence, §§ 43 and 44, and cases cited in notes, and the late ease of Railroad Company v. Gladmon, 15 Wallace, 401, where the supreme court of the United States lay down the rules as given above. It seems to us to follow from this, that where the special verdict shows an iniury caused by gross negligence of the defendant, a recovery must be sustained, unless it is also apparent that there was such contributory negligence- as to relieve the defendant of responsibility; and that where it is uncertain whether such negligence is apparent, the doubt must be resolved against the defendant. In this case negligence and contributory negligence were not matters collateral and subordinate to the main issue, but were the vital and principal questions. To them the attention of counsel was mainly directed. The degree of negligence essential to defeat a recovery had been already settled by this court, and was doubtless known to counsel. The instructions are full of references to the different degrees of negligence. The jury specified in their verdict the degree of negligence of which they found the defendant guilty, and declare that it was the immediate cause of the injury. If any of the findings were not sufficiently definite and certain, either party could have called the attention of the court to it before the discharge of the jury, and had it made so. Arthur v. Wallace, 8 Kas., 267. And if the party whose interest it is to have it made definite and certain fails to do so, the omission will be taken against him in the construction of the finding. At the time this verdict was returned, the company objected that it was partial, incomplete, and inconsistent, [52]*52and specified a number of points in which it desired correction, but said nothing as to this 13th finding. It appeared to be content with it. Turning now to the verdict, and we find that after the separate findings of fact, and as a part of the verdict, the jury return as follows: “We the jury find for the plaintiff, and assess his damages at $5,000.” It appears from this, that the jury did not mean by the 13th finding to attribute to the plaintiff such a degree of negligence as would defeat his recovery. They intended only such slight negligence, or negligence so remotely contributory to the injury, as was consistent with his right to compensation. It may be said that this was in effect a general verdict, and that this the jury were not at liberty to return where a special verdict had been ordered. This may all be true; but it does not affect the question we are now considering, viz., the intent of the jury. They failed to specify the degree of negligence of the plaintiff — what degree did they intend — and upon this question of intent this quasi general verdict strongly bears. Nor can it be argued that this general finding was returned in ignorance of the law, and that the jury must have supPosec^ that Diere negligence of the defendant gave a right of recovery independent of the con-0f p]a}n£ig? £pe first instruction given, at the instance of the plaintiff, they were told substantially that the plaintiff could not recover if the injury resulted from his own negligence, but that slight negligence on his part would not defeat a recovery. To a similar effect is the third instruction given at the like instance. These instructions, and the general finding, point clearly to the intention of the jury in the 13th finding, and show that they contemplated only that slight negligence which is consistent with the right to compensation. Again, it seems that the last instruction given at the instance of the defendant throws some light upon this question. That instruction is as follows:
“ The fact that persons were upon the track or yard of the defendant before, was no license to the plaintiff to be there, and was no justification, for the plaintiff being there; [53]*53and he was guilty of negligence for being on the track, if the jury find that he was on the track.”
As without dispute the plaintiff was on the track, when struck by the train, of course the jury could not find otherwise than that he was guilty of negligence. It is unnecessary to inquire whether this be good law or not, for surely it is a proposition of which the railroad company has no cause of complaint. It is enough now that it serves to indicate upon what the 13th finding was based. As it was an open question whether the place of the accident was a public crossing, it can hardly be that the court intended' to say to the jury, that, though this were a public crossing, the presence of the plaintiff on the track was such ordinary contributory negligence as, notwithstanding the gross negligence of the railroad company, would defeat a recovery. It seems to us therefore that the jury-intended by this 13th finding only such slight negligence as does not bar the right to compensation.
8. Negligee when a question for the jury [54]*549. concurring verdicts. [53]*53But the solution of this question by no means removes the difficulties in deciding the case. It is earnestly insisted by counsel, that the facts in reference to the conduct of the plain- ^ (defendant in error,) as they appear from the other findings, as well as from the testimony, show that culpable negligence on his part which will relieve the company from responsibility. It seems to us matter of great doubt, as we read the conduct of the plaintiff, as narrated either in the findings or the testimony, whether this claim of counsel is not correct, and whether plaintiff was not so negligent as not to be entitled to compensation. And perhaps this doubt is our best justification for upholding the verdict. This question of negligence is said to be a mixed question of law and fact. When the facts are disputed, it makes a question for the jury. When the facts are undisputed, and but one deduction is to be drawn from them, there is simply a question of law for the court. But where the facts, though undisputed, are such that when taken singly or in combination different minds will come to different conclusions as to the' reasonableness and care of the party’s conduct, [54]*54the question is one which may properly be left to the determination of the jury. Rld. Co. v. Stout, 17 Wallace, 657; Detroit & W. Rld. Co. v. VanSteinberg, 17 Mich., 99. In this case three separate juries have found for the plaintiff, and ^at, notwithstanding any imputations that could be made on his conduct, he was entitled to compensation. While we are not disposed, even if it were possible, to avoid any responsibility that properly belongs to us, or leave with a jury the burden of determining questions which we ought to decide, and while we should never permit the perpetratiQn of a glaring wrong upon a party, no matter how many successive juries should attempt it, yet the unanimous judgment of thirty-six intelligent, candid men, as to the reasonableness and care of a party’s conduct at the time of an injury, ought to have no little weight with us.
We have outlined, in considering the first question, the conduct of the company. A similar outline is proper as to that of the plaintiff. It appears that there is a space south of the old depot in Leavenworth about 1,000 feet in length, and 200 feet in width, shut in between the Missouri river on the east, and a steep bluff on the west. At the lower end of this space was, at the time of this injury, and had been for years, a grist-mill built against the bluff, and also at times the landing place of the ferry-boat. The boat changed the landing-place from time to time to accommodate itself to the different changes of the water, so that only part of the time did it land at or near this space. Over this space the Missouri Pacific Railroad and this defendant had constructed four or five tracks, which were used in- the making-up of the trains, the tracks of the Missouri Pacific Road being next the river, and those of the defendant near the bluff. At the northwest corner of this space two streets came together, and prior to any occupation by the railroad companies the city had passed an ordinance for the opening of a street from the junction of these streets southward over this ground. But nothing more had been done toward securing the appropriation of the ground for street purposes. Both before and sub[55]*55sequent to the occupation by the railroad companies, and at the time of this injury, there was a traveled way from the junction of the streets across this space, and over the tracks of the companies, at the ferry landing, and the traveled way the plaintiff was going to the ferry at the time he was run over. Between the tracks there was ample space and level ground for one to walk in safety, and west of this defendant’s track, and close to the bluff, was a carriage-way which ran along the whole length of the space, and crossed the track at right angles at the mill. The plaintiff could have walked along this carriage-way, or between the tracks, and- been out of danger, except at the very moment of crossing. Instead of doing this, he got on to the track at about the junction of the two streets, and walked southward on it toward the ferry. At the time he got on to the track he looked, and no train was in motion. As he passed down the track the defendant’s train started out from the depot, and the engineer on the Missouri Pacific train seeing plaintiff’s danger whistled to alarm him, and the yard-master of the Missouri Pacific Company shouted and tried to attract his attention, but in vain. Erom this outline it can but be seen that the plaintiff was guilty of some negligence, that he did not act with the highest prudence. Indeed, as before remarked, honest minds might well differ as to whether his negligence was not so great as to disentitle him to relief. In comparing however the conduct of the two parties, it will be generally conceded that the negligence of the company was of a higher degree, and a grosser character, than that of the plaintiff. This case must be distinguished from those where a party approaches and crosses a track without looking to see whether any train is coming; for here the plaintiff looked, and not only did he see no train coming, but in fact there was none. The train started after he got on. Nor must it be confounded with those cases in which the injury occurs on ground in the exclusive occupation of the railroad company. It was on ground of which the public and the company were in joint occupation — on ground which, without objection by the com[56]*56pany, the public was occupying and using as a street, over which the plaintiff was then passing on his usual way to his home, on the east side of the river. For a case which, while its facts are not altogether similar, has many elements in it to make it a most appropriate citation in this, see Butler, Adm’x, v. The M. & St. Paul Rly. Co., 28 Wis., 489. See also, Railway Co. v. Whitton, 13 Wall., 270. It seems to us, after a full and careful examination of this case, that the judgment must be affirmed.
Other objections are made by the learned counsel for plaintiff in error, but they are of minor importance. The record is voluminous, and many exceptions were taken. But this case has been once before to this court, and a judgment in favor of the plaintiff reversed; (K. P. Rly. Co. v. Pointer, 9 Kas., 620;) and only such errors as are clearly prejudicial to the substantial rights of the plaintiff in error should be regarded.
The judgment will be affirmed.
All the Justices concurring.