Atchison, Topeka & Santa Fe Railway Co. v. Roth , 80 Kan. 752 ( 1909 )

The opinion of the court was delivered by

Graves, J.:

The defendant contends that there is an entire absence of proof tending to establish negligence upon its part, and that there is a conclusive showing of contributory negligence upon the part of the deceased. It has also been urged that the jury found that the bridge was negligently constructed, as alleged in the petition; but it is not intimated that this condition of the bridge had anything to do with the injury of which complaint is made.

These propositions are strongly presented. It is unnecessary, however, for us to place the decision of the case upon either of these contentions, as it can be disposed of upon the findings of fact. Questions numbered 13 and 14 and the answers thereto were intended to elicit a full statement of the facts constituting the defendant’s negligence, but .no facts are stated which can be construed into negligence. They read:

“ (13) Ques. Was the defendant guilty of negligence toward the deceased? Ans. Yes.

“(14) Q. If you answer the last question in the affirmative, then state in what such negligence [consisted], and the name or names of the officer or agent or employee of the company that was guilty of such negligence. A. By slowing down and then increasing the speed of east-bound freight by engineer Gibbs.”

The mere slowing down and then increasing the speed of a train moving under ordinary conditions on the main track does not constitute negligence. Under some circumstances it might be negligence, but here no such circumstances are stated. The jury do not state how this act of the engineer affected Roth or in any way contributed to his death. The same is true of the construction of the bridge. The fact that it was negligently constructed is immaterial unless it contributed to the accident. In this respect the general verdict is not sustained by the special findings, but is inconsistent therewith.

The judgment of the district court is reversed, with directions to grant a new1 trial and proceed in accordance with the views herein expressed.