St. Joseph & Denver City Railroad v. Grover , 11 Kan. 302 ( 1873 )

The opinion of the court was delivered by

Bee wee, J.:

The action in the court below was for damages for the killing of a cow by a freight train on the railroad track of plaintiff in error. It is insisted here, as. it was in the district court, that the bill of particulars is insufficient in not alleging that the killing was willful or wanton, or that it resulted from gross negligence. It does allege that the cow, without the fault of the plaintiff, strayed upon the track of defendant’s road, and that defendant so carelessly and negligently managed its locomotives and cars as to run over and kill it. Objection is also made to the instructions given at the instance of the plaintiff, on the ground that they place ordinary care as the rule of defendant’s duty, and ordinary negligence as the measure of its responsibility. We think them justly subject to this criticism, and that in this they differ from the instructions given at the instances of defendant which follow the decision of this court in the case of U. P. Rly. Co. v. Rollins, 5 Kas., 167. The question then is fairly presented, whether there has been any change in the law since that decision.. For if not, there was error in the rule given at the instance of the plaintiff, and where two contradictory instructions are given a reversal will ordinarily have to be granted. In 1870 an act was passed, the first section of which reads:

“Sec. 1. That railroads in this state shall be liable for all damages done to person or property, when done in consequence of any neglect on the part of the railroad companies.” —Laws 1870, page 197, ch. 93.

Many interesting questions will arise under this section. Did the legislature simply intend to give statutory force to the judicial determinations of the rules and limits of railroad liability? This hardly seems possible, or else they have chosen language most inapt. Evidently they proposed a change. By that change did they seek to wipe out the doctrine of contributory negligence, as a defense to a plaintiff’s action, and to make th.e companies liable in every case of negligence on their part, even though the plaintiff’s negligence contributed equally or more to the injury? Did they intend to make the companies responsible in all cases for slight negligence? In other words, did they purpose that the measure of care should be the same toward a pig on the track, as toward a passenger on the train? It is unnecessary to pass upon those questions now. Ordinary negligence is all that was required by the charge of the court in this case, and ordinary negligence is within the letter and spirit of the law. “In consequence of any neglect,” is the language. Surely, if the company fails to use ordinary care, and is guilty of ordinary negligence, if it fails to make usual and reasonable efforts to prevent the injury, there is some neglect on its part. Can it omit that degree of diligence which men in general exercise in respect to their own concerns, without being open to the charge of neglect? We think not; and therefore decide that under the law of 1870 it is not error in an action like this to instruct the jury that the company is liable if it fails to use ordinary care and diligence and is guilty of ordinary negligence. The instructions given at the instance of plaintiff do not appear to be harmonious with those given at the instance of defendant, but as those least favorable to the plaintiff in error are correct, it cannot have been prejudiced. Of course, the decision of this question clears up any doubt, if doubt there was, as to the sufficiency of the bill of particulars. The judgment will be affirmed.

All the Justices concurring.