Union Pacific Railway Co. v. Young

19 Kan. 488

Opinions

The opinion of the court was delivered by

Horton, C. J.:

This action has been pending in the courts for nearly ten years, and the injury for which the damages were assessed occurred on the 19th of September 1867. The case was before this court at the July Term 1871, and is reported in 8 Kas. 658. On its return to the court below the parties filed new pleadings. The cause was tried the second time on 6th March 1876, and resulted in a verdict and judgment for the defendant in error for $10,000. The railway company again invokes the aid of this court to reverse the judgment against it.

Young was in the employment of the railway company, and by reason of such employment it became his duty to couple the cars upon the trains on which he was employed; and at the Lawrence station, while attempting to couple the cars by setting an iron pin in the drawhead of one of the cars, his right hand dropped between the bumpers of the two cars he was trying to couple, and was crushed so that amputation at the wrist became necessary. The petition alleged that the injuries resulted wholly and entirely from the negligence, carelessness, and recklessness of the railway company and its engineer then having charge and control of the engine attached to the train; that said engineer, in backing his engine and the cars attached for the purpose of having the same connected to other cars on the track, and where Young was standing to fasten the cars together, so violently, recklessly and negligently ran the engine and cars to, against and upon the cars where Young was, that he received the injury complained of; that the railway company was at said date informed and fully aware that the said engineer had been for a long time theretofore and was then totally incompetent to perform the duties of an engineer; that he was careless, negligent, and reckless; that the engineer was employed without reasonable inquiry either as to his fitness or competency to be or to act as such engineer, or to have control or power as such, and without reasonable diligence having been exercised to ascertain the fitness of said engineer to act in that capacity, and without reasonable grounds to believe he was competent for such service, and that the company continued him in its employment until after the happening of said wrongs and grievances without using reasonable diligence or care to know or ascertain or be informed of the fitness, care, knowledge, or skill of said engineer, or the want thereof on his part. Upon the trial the plaintiff in the court below offered evidence tending to prove that he was injured through the negligence of the engineer; that he did not by his negligence contribute to his own injury; that the engineer was an incompetent and unfit person to be a locomotive engineer, and that the company was guilty of negligence in employing him and retaining him in its employ.

That the evidence fully established the unfitness and incompetency of the engineer for the business intrusted to him, and that the company knew and ought to have known of such unfitness and incompetency, we do not think can be fairly questioned. The critical points in the case of the defendant in error were, in our view, whether the injury received was caused by the negligence of the engineer, and whether Young was guilty of contributory negligence. These questions however were properly submitted to the jury for their determination, upon instructions fully warranted by the previous decisions of this court, and from the verdict must have been decided adversely to the railway company; and as there was evidence introduced to sustain the same, we cannot interfere, although the preponderance might be opposed to the verdict. Notwithstanding the exhaustive and elaborate briefs presented by the counsel of the plaintiff in error to this court, no new questions are raised concerning the allegations of the petition, the objections to the testimony, or the instructions of the court; hence we do not feel justified in incorporating in this opinion the voluminous testimony given on the trial, or in reviewing law-points deemed settled by the adjudications of this court. We refer to the following cases as decisive of the material questions to which our attention has been called by the arguments of counsel upon the testimony and instructions: Rollins v. U. P. Rly. Co., 5 Kas. 167; K. P. Rly. Co. v. Milliken, 8 Kas. 647; Sawyer v. Sauer, 10 Kas. 466; K. P. Rly. Co. v. Pointer, 14 Kas. 37; K. P. Rly. Co. v. Salmon, 14 Kas. 512; K. P. Rly. Co. v. Kunkel, 17 Kas. 145; C. & R. I. Rld. Co. v. Doyle, 18 Kas. 58.

The most serious matter in the case for our consideration is the objection urged against the verdict on the ground that it is excessive. In determining this objection, in addition to the many other elements that enter into the estimate of the real amount of damages sustained by the defendant in error, we are to consider the fact that he was only twenty-four or five years of age at the time of the amputation of his hand, that he was engaged in an employment in which there is a regular system of promotions, that many years 'elapsed between the injury and the verdict, and that two juries have decided substantially in favor of the sum of $10,000. Again, the trial court, whose imperative duty it was to set aside the verdict, or reduce its amount, if the jury erred from prejudice or other cause, has approved the same, and added its sanction to the award. The question was one peculiarly proper for the jury to determine; and although the verdict is large, larger perhaps than any member of this court would, as a juror, have returned, we cannot, in view of all the cir cumstances, say that such damages are so excessive as to strike the mind at first blush as being the result of bias or prejudice. To interfere, we must say that the jury acted under some improper influence or bias in the matter. This we cannot say. If the defendant in error had obtained $6,000 for his injury soon after the same occurred, this sum kept at seven per cent, interest per annum would have now exceeded the verdict. The first verdict was for $9,000. This sum at seven per cent, interest during the time between the verdicts would have exceeded largely the second verdict; hence in fact the second verdict, comparing the time it was rendered, is really much less than the first one- The amount which the defendant in error earned per year at the time of the injury is not alone to be considered in the award to him of such compensation as shall net him in his present maimed condition a like income in the future, because the opportunities of promotion and the occupancy of a more lucrative position are also to be regarded. The yearly interest of the judgment at the rate of seven per cent, (and this is all that money will usually realize, even in our state with its high rates of interest, after deducting taxes,) will amount to $700; and when there is taken into account the advancement of firemen, brakemen and station-keepers on railways from one position to another, till they oftentimes become conductors, superintendents, and managers of railways, with salaries ranging from $1,200 to $10,000 and upwards per annum, it is neither unreasonable nor imaginative to suppose that an attentive, intelligent, and energetic brakeman of twenty-five would in time earn a much larger sum'per annum than $700 in a higher position if the possibilities of the future had not been forever closed to him by the loss of his right hand. The trial judge had some opportunity to determine from the defendant in error while on the witness stand as to his capacity for business, and h'is general intelligence, which is denied to us; and considering all the facts in the case, we do not feel the liberty of saying that the verdict of the jury is so flagrant, or outrageously unjust, as to require of us, as a reviewing court, to set it aside and grant a new trial solely for excessive damages.