The opinion of the court was delivered by
Kingman, C. J.:
On the 22d of May 1871, the plaintiff in error ran a special excursion train over its road, southward, through the city of Garnett. On Third street in that city, near where that street crosses the railroad, tlie defendant in error was riding in a buggy drawn by two horses. The horses were frightened by the train, and in their fright turned around, and tipped out the driver and the defendant in error, whereby she was severely injured. For these injuries she brought an action, alleging negligence on the part of those having charge of the train, in the manner of running it, and in failing to give the necessary signals of its approach. The defense sought to establish the facts that the train was carefully and prudently run, and the signals properly and timely [435]*435sounded; and further, that the defendant in error was guilty of negligence in not taking reasonable care to observe the approach of the train, and thus contributed to the injury. On the admission of the testimony but two exceptions were made to the ruling of the court, and in these instances the ruling was so manifestly correct that no point is made thereon in the brief of plaintiff in error, and no further notice of them will be taken here. The other errors alleged are in the refusal of the court to order a special verdict upon the demand of the plaintiff in error, and in the instructions given and refused, and in overruling the motion for a new trial; and these will be considered in their order.
i.specialyerof parties. I. Plaintiff in error demanded a special verdict from the jury. The statute expressly gives this right. It is neither ambiguous, uncertain, nor open to construction. It is clearly the duty of the court to direct the jury to find a special verdict when both or either party demands it: Laws 1870, ch. 87, § 7. No question of the convenience or inconvenience of such practice can have anything to do with the decision of the question. The right is absolute. We may doub.t the wisdom of the law, but are not authorized to evade it. The refusal of the court to direct a special verdict compels this court to send the case back for a new trial. As the counsel for defendant in error insists that no exception was taken to the refusal, at the proper time, it is deemed advisable to state the facts as they appear on the record. At the commencement of the trial the plaintiff in error, in answer to a suggestion of the court, informed the court that it “required the jury to find a special verdict in the action embracing all the issuable facts.” No refusal of the demand was then made or intimated, so that there was no occasion for an exception. The party had a right to believe that a right given him by law would be awarded by the court. When the testimony was all in, and before the argument, the demand was repeated. Then the court decided, that “the jury may find a special verdict upon such of the issuable facts presented by the counsel in writing, and may conclude [436]*436their findings by a general verdict.” To this ruling the defendant “then and there excepted.” Again, when the jury returned with the verdict the request to have them sent back with directions to bring in a special verdict was renewed, and the refusal to so order was excepted to. Thus speaks the record; and it is apparent that the plaintiff in error demanded and the court refused to direct a special verdict. The demand, though not in the language of the- statute, was in such substantial conformity with it that there is no possibility of misunderstanding it. The code, § 285, defines what a special verdict is. The special findings of fact made in this case in response to written propositions submitted to the jury do not constitute a special verdict, and if they did, would not uphold a judgment.
II. The conclusion reached on the foregoing point renders it comparatively easy to dispose of the others, for in commenting upon instructions it is often more difficult to determine whether an instruction is misleading in a particular case than it is to decide whether it accurately lays down true principles of law. The charge of the court consisted of nine paragraphs; to the 6th, 7th, 8th, and 9th, the plaintiff in error excepted. The 6th charge is as follows:
“The jury should determine from all the evidence whether any agent, officer, servant, or employee of the defendant, whilst conducting, running, or managing any locomotive, car, or train of cars, failed to exercise the diligence, care, and foresight of a prudent man; and the absence or want of such diligence, care, and foresight, would constitute such negligence as would render the defendant liable.”
2. Negligence of railway company. This instruction would be correct if the negligence led to the injury complained of; and this is probably what was intended, and what the jury understood by it, as there was no evidence tending to show negligence in any other ° . ° , than this particular tram at this time. The 7th instruction is intended to embrace the requirements of § 60, of ch. 23, Gen. Stat., but should be corrected so that if the whistle was sounded at least eighty rods from the street crossing, on the outside of the city limits, and was continuously [437]*437sounded till the city limits were reached, and then the bell was rung until the crossing of the street, then there was no negligence on account of signals. But the charge is open to a more serious objection. The failure to give the signal required by the section is negligence. The law has fixed the duty in exact terms. An omission of that duty is negligence; but the degree of negligence must depend on the facts of each case. When the court told the jury that such omission was gross negligence, it was error. Each case must depend upon the peculiar facts, and may be gross negligence, or simply negligence because the law makes it so. It should have been left to the jury to say in this case whether the omission was gross negligence or not. The 8th instruction is not inconsistent with the charge making it the duty of parties approaching a railway, to look out for danger, but is to be taken in connection with that part of the charge, and taken together the principles laid down are correct. The 9th instruction is to the effect, that if the injuries complained of were caused by gross negligeuce, and the jury so found, they might find exemplary damages. This is the law as settled by this court: Malone v. Murphy, 2 Kas., 250; Wiley v. Keokuk, 6 Kas., 94. But the negligence should be so gross as to amount to wantonness, to authorize exemplary damages. We do not care to enter into a discussion of the correct principle. It is fully discussed pro and con in the appendix to Mr. Sedgwick’s treatise on the measure of damages. The authorities seem to be mostly one way, and those this court has seen proper to follow rather than theory.
3. care and viglequüéaíesiee [438]*4384. Travelers on raSoafo^4 lance. [437]*437The plaintiff in error asked six instructions, of which the first only was given, and that in a modified form. The modification consisting in striking out that portion of it that stated that it made no difference as to defendant’s liability whether the whistle was sounded at the distance of 80 rods from the crossing or not. This was properly stricken from the instruction. It was one of the real questions at issue, whether the whistle was sounded so as to put the plaintiff on her guard.
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The opinion of the court was delivered by
Kingman, C. J.:
On the 22d of May 1871, the plaintiff in error ran a special excursion train over its road, southward, through the city of Garnett. On Third street in that city, near where that street crosses the railroad, tlie defendant in error was riding in a buggy drawn by two horses. The horses were frightened by the train, and in their fright turned around, and tipped out the driver and the defendant in error, whereby she was severely injured. For these injuries she brought an action, alleging negligence on the part of those having charge of the train, in the manner of running it, and in failing to give the necessary signals of its approach. The defense sought to establish the facts that the train was carefully and prudently run, and the signals properly and timely [435]*435sounded; and further, that the defendant in error was guilty of negligence in not taking reasonable care to observe the approach of the train, and thus contributed to the injury. On the admission of the testimony but two exceptions were made to the ruling of the court, and in these instances the ruling was so manifestly correct that no point is made thereon in the brief of plaintiff in error, and no further notice of them will be taken here. The other errors alleged are in the refusal of the court to order a special verdict upon the demand of the plaintiff in error, and in the instructions given and refused, and in overruling the motion for a new trial; and these will be considered in their order.
i.specialyerof parties. I. Plaintiff in error demanded a special verdict from the jury. The statute expressly gives this right. It is neither ambiguous, uncertain, nor open to construction. It is clearly the duty of the court to direct the jury to find a special verdict when both or either party demands it: Laws 1870, ch. 87, § 7. No question of the convenience or inconvenience of such practice can have anything to do with the decision of the question. The right is absolute. We may doub.t the wisdom of the law, but are not authorized to evade it. The refusal of the court to direct a special verdict compels this court to send the case back for a new trial. As the counsel for defendant in error insists that no exception was taken to the refusal, at the proper time, it is deemed advisable to state the facts as they appear on the record. At the commencement of the trial the plaintiff in error, in answer to a suggestion of the court, informed the court that it “required the jury to find a special verdict in the action embracing all the issuable facts.” No refusal of the demand was then made or intimated, so that there was no occasion for an exception. The party had a right to believe that a right given him by law would be awarded by the court. When the testimony was all in, and before the argument, the demand was repeated. Then the court decided, that “the jury may find a special verdict upon such of the issuable facts presented by the counsel in writing, and may conclude [436]*436their findings by a general verdict.” To this ruling the defendant “then and there excepted.” Again, when the jury returned with the verdict the request to have them sent back with directions to bring in a special verdict was renewed, and the refusal to so order was excepted to. Thus speaks the record; and it is apparent that the plaintiff in error demanded and the court refused to direct a special verdict. The demand, though not in the language of the- statute, was in such substantial conformity with it that there is no possibility of misunderstanding it. The code, § 285, defines what a special verdict is. The special findings of fact made in this case in response to written propositions submitted to the jury do not constitute a special verdict, and if they did, would not uphold a judgment.
II. The conclusion reached on the foregoing point renders it comparatively easy to dispose of the others, for in commenting upon instructions it is often more difficult to determine whether an instruction is misleading in a particular case than it is to decide whether it accurately lays down true principles of law. The charge of the court consisted of nine paragraphs; to the 6th, 7th, 8th, and 9th, the plaintiff in error excepted. The 6th charge is as follows:
“The jury should determine from all the evidence whether any agent, officer, servant, or employee of the defendant, whilst conducting, running, or managing any locomotive, car, or train of cars, failed to exercise the diligence, care, and foresight of a prudent man; and the absence or want of such diligence, care, and foresight, would constitute such negligence as would render the defendant liable.”
2. Negligence of railway company. This instruction would be correct if the negligence led to the injury complained of; and this is probably what was intended, and what the jury understood by it, as there was no evidence tending to show negligence in any other ° . ° , than this particular tram at this time. The 7th instruction is intended to embrace the requirements of § 60, of ch. 23, Gen. Stat., but should be corrected so that if the whistle was sounded at least eighty rods from the street crossing, on the outside of the city limits, and was continuously [437]*437sounded till the city limits were reached, and then the bell was rung until the crossing of the street, then there was no negligence on account of signals. But the charge is open to a more serious objection. The failure to give the signal required by the section is negligence. The law has fixed the duty in exact terms. An omission of that duty is negligence; but the degree of negligence must depend on the facts of each case. When the court told the jury that such omission was gross negligence, it was error. Each case must depend upon the peculiar facts, and may be gross negligence, or simply negligence because the law makes it so. It should have been left to the jury to say in this case whether the omission was gross negligence or not. The 8th instruction is not inconsistent with the charge making it the duty of parties approaching a railway, to look out for danger, but is to be taken in connection with that part of the charge, and taken together the principles laid down are correct. The 9th instruction is to the effect, that if the injuries complained of were caused by gross negligeuce, and the jury so found, they might find exemplary damages. This is the law as settled by this court: Malone v. Murphy, 2 Kas., 250; Wiley v. Keokuk, 6 Kas., 94. But the negligence should be so gross as to amount to wantonness, to authorize exemplary damages. We do not care to enter into a discussion of the correct principle. It is fully discussed pro and con in the appendix to Mr. Sedgwick’s treatise on the measure of damages. The authorities seem to be mostly one way, and those this court has seen proper to follow rather than theory.
3. care and viglequüéaíesiee [438]*4384. Travelers on raSoafo^4 lance. [437]*437The plaintiff in error asked six instructions, of which the first only was given, and that in a modified form. The modification consisting in striking out that portion of it that stated that it made no difference as to defendant’s liability whether the whistle was sounded at the distance of 80 rods from the crossing or not. This was properly stricken from the instruction. It was one of the real questions at issue, whether the whistle was sounded so as to put the plaintiff on her guard. The 2d instruction does [438]*438not specify any points or' distances at which the required signals should be sounded, to escape from the charge of negligence; and for this reason, if for no other, was not law. The 3d and 5th instructions are as to the weight of evidence of certain kinds. As the court laid down the true rule in the 4th paragraph of its charge, it was not bound to repeat it. The 4th instruction asked is faulty in this, that it made it the duty of the driver of the carriage in which plaintiff was riding to stop and look up and down the track to see if there was a train approaching. This is requiring more of a traveler than any reported case to which we are referred demands. The railway and the street are equally highways. A legitimate use of either is a public right, and this right rests on the same basis in both. Parties are bound to care and diligence when using either, so that their use shall not work injury to others with the . same rights. On the highway the traveler must use prudence, so as not to inflict injuries on others and to guard against injury from others. The same obligation rests upon the operators of a railway train. They must exercise a degree of care corresponding to the perils of such a mode of transportation. Persons crossing a railroad on a street or public highway are only exercising an undoubted right; but in doing so they must use the same care and vigilance for their safety, and the safety of persons running on the railroad, that the operators of the train use. The principles applicable to one are applicable to the other, and are as old as law. The traveler on the highway is no more bound to stop when he approaches a railroad, than the managers of the train are bound to stop when they approach a highway. It may be the imperative duty of either to stop when the conditions require it. The managers of a railway train, though they have a right to the use of the track, have no right to run it into a procession crossing the track on a highway, or into a crowd collected to extinguish a fire; and if they should do so knowingly, and without every effort to stop the train, would be guilty of culpable négligence. In most cases, as [439]*439the traveler on the highway can arrest his progress easier and quicker than the railway train, it would be his duty to stop on the approach of danger. But this obligation does not arise from the superior right of the railroad, but from the conditions of the parties. The duty of the train to stop in case of apprehended danger is just as strong and obligatory.
It is unnecessary to examine the other points made on a motion for a new trial, as the judgment must for the reasons given be reversed, and a new trial ordered.
All the Justices concurring.