Atchison, Topeka & Santa Fe Railroad v. O'Melia , 1 Kan. App. 374 ( 1895 )

The opinion of the court was delivered by

Johnson, P. J. :

The first error complained of is the overruling of the motion of the railroad company for a continuance of the case from 4: 30 p. m. until the convening of the court the next morning, to enable the defendant below to procure the evidence of W. W." Hopkins, who resided in the county within eight miles of where the court was being held. The affidavit of the attorney for the railroad company sets out fully all the facts in relation to the efforts made to procure the presence of the witness and the materiality of his testimony, and that he would be able to procure the attendance of the witness at the convening of the court the next morning. Where a party in good faith complies with the requirements of § 317, chapter 80, General Statutes of 1889, and has used due diligence to procure the testimony of an absent witness whose evidence is material, a continuance should ordinarily be granted; but the matter of a continuance on account of the absence of a witness whose testimony is material is within the sound discretion of the trial court, and a,reversal of a judgment will not be granted for the refusal to continue on account of the absence of witnesses, unless there has been a clear abuse of such discretion. We cannot say that there has been such abuse of discretion in the denial of the motion for a continuance in this case as will call for a reversal of the case. This motion, coming as it did near the usual hour for adjournment of the court for the day, and the party only desiring until the convening of the court next morning, ought to have appealed strongly to the court in granting the short time asked to secure the witness.

The second error complained of in the brief of counsel for the plaintiff in error is that the judgment was rendered for O’Melia when, under the evidence and the law, the verdict and judgment should have been for the railroad company. We have examined the evidence in this case very carefully, and are unable to say, as a matter of law under all the evidence, that the court should have directed the jury to return a verdict in favor of the railroad company. There is great conflict in the evidence,- which it is unnecessary for us to point out or discuss in this opinion, but it was a question of fact as to whether the railroad company was liable for the injury sustained by O’Melia. There was some evidence on each material fact tending to prove the plaintiff’s claim for damages, and it was the duty of the trial judge to submit the facts to the jury under proper instructions.

The third error complained of by the plaintiff in error is in the instructions given by the court -to the jury. The charge of the court is quite full, and contains 19 separate paragraphs. The particular instructions claimed to be erroneous are fo'und in the third, fourth, eighth and thirteenth paragraphs. It is insisted by counsel that these instructions lay down the doctrine of comparative negligence, and ignore entirely the rule of contributory negligence. The writer of this opinion is disposed to agree with counsel for the plaintiff in error, and is of the opinion that these instructions are on the border-line of comparative negligence, and that they seem to ignore the rule of contributory negligence. The doctrine of comparative negligence has been repudiated by the supreme court of this state. (K. P. Rly. Co. v. Peavey, 29 Kas. 180; Howard v. K. C. Ft. S. & G. Rld. Co., 41 id. 408 ; A. T. & S. F. Rld. Co. v. Morgan, 31 id. 77.)

Beach, in his work on Contributory Negligence, § 26, says :

“The doctrine of comparative negligence, being so entirely at variance with the accepted rule of law concerning contributory negligence, has very naturally provoked much sharp criticism, and the courts of other states repudiate it with emphasis.”

In the case of O’Keffe v. C. R. I. & P. Rly. Co., 32 Iowa, 467, Cole, J., delivering the opinion of the court, says :

! ‘ The well-established law of this state is that in an action to recover damages for the negligent act of the defendant, the plaintiff will not be* entitled to recover if his own negligence contributed directly to the injury. In other words, this court recognizes and applies the doctrine of contributory" negligence and not the doctrine of comparative negligence. The latter doctrine obtains only .in Illinois and Georgia;, while the former obtains in the other states.”

In the case of Railway Co. v. Jones, 95 U. S., 442, Mr. Justice Swayne, delivering the opinion of the court, says;

' ‘ One who by his own negligence has brought the injury upon himself cannot recover damages.for it. Such is the rule of the civil and common law. The plaintiff in such cases is entitled to no relief; but where the defendant has been guilty of negligence also in the same connection, the result depends upon the facts. The question in such case is, (1) whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or, (2) whether the plaintiff himself so far contributed to the misfortune, by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened.”

We are met in this case with the approval of these instructions by the supreme court in the case of the A. T. & 8. F. Rld. Co. v. Hughes,^* (decided by the supreme court of Kansas July 6, 1895, and not yet reported.) The cause of action in both of these cases originated at the same time, and each happened on account of the failure of the railroad company to stop its train at the station of Peterton, and each of the parties leaped from the moving train. Hughes was killed, and suit was brought by his widow to recover damages on account of the wrongful and negligent act causing his death. O’Melia was injured and survived, and brought this action for the injuries sustained. Both cases were tried in the same court, before the same judge. This case was tried on the 13th day of November, 1890, and the Hughes case on the 14th day of November, and the same instructions were given in each case, so far as they related to the question of negligence. The widow of Hughes recovered over $2,000 damages, and her case was retained in the supreme court. In the case of O’Melia the judgment was for less than $2,000, and was duly certified by the supreme court down to this court for its decision, and we feel bound to adopt the construction put upon the charge1 of the court by the supreme court. Johnston, J., delivering the opinion of the court, says :

“It is next insisted that the court erred in its instructions to the jury by requiring the application of the rule of comparative negligence, in its instruction in regard to gross negligence, and in other respects in ‘the giving and refusing of instructions. The court in its charge stated the rules which govern where there is Inutual or concurring negligence. It also recognized different degrees of negligence, and, in doing so, to some extent seemed to place the gross negligence of the company against the slight negligence of the deceased. Evidently the trial court had in mind some of the decisions of this court where it is held that a slight inattention to duty, which is not the proximate cause of the injury, does not bar a recovery for injury resulting from the negligence of another. Although some of the language employed was objectionable, it is clear that the court did not indorse the doctrine of comparative negligence, nor give the jury to understand that if Hughes was guilty of ordinary negligence contributing to his death, there might be a. recovery, because the company was guilty of greater-negligence. The passenger is required to exercise ordinary care, and his failure to exercise the highest or extraordinary care will not preclude a recovery for an injury caused'by the gross or ordinary negligence of the railroad company. It is conceded that extraordinary care is not required of a plaintiff who brings an action of negligence, and that slight negligence on his part will not defeat a recovery. In the case of Railway Co. v. Peavey, 29 Kas. 180, cited by plaintiff in error, it is said that ‘ It is settled in this state that a party may recover for injuries done to him or his property caused by the negligence of another, even if his negligence is slight/ While this view was adopted and degrees of negligence were recognized, at the same time the court plainly instructed the jury, and kept it before them throughout the charge, that if Hughes failed to exercise ordinary care and prudence in jumping from or leaving the train, there could be no recovery for his death. Taking all the instructions together, we think the jury was not misled by the language of the court which is complained of, and that, under the decisions, it cannot be held that prejudicial error was committed in charging the jury as to the care required of the company and of the deceased. (Railway Co. v. Rollins, 5 Kas. 167 ; Sawyer v. Sauer, 10 id. 466 ; Railway Co. v. Pointer, 14 id. 37; Railway Co. v. Young, 19 id. 488 ; Railway Co. v. Richardson, 25 id. 391 ; Railway Co. v. Peavey, 29 id. 180 ; Railway Co. v. Henry, id. 565 ; 14 Pac. Rep. 1.) The testimony which was introduced warranted the court in stating the rule of gross negligence to the jury, and, after an examination of the entire charge, we are satisfied that the remaining objections to the rulings upon the instructions given and refused are not substantial, nor can error be predicated on them.”

Plaintiff in error insists that, under the special findings 'of fact of the jury, it appears that there was no negligence on the part of the railroad company and its employees in chargé of the train. Substantially the same findings of fact were made in the Hughes Case, just referred to, and the supreme court sustained the judgment of the district court over these objections. The court, in relation to the special findings, says : “ Some objections are made to the answer given by the jury to the special question submitted, but we find nothing substantial in them.’’ We think there was testimony to sustain the findings that were made, and we can see no such inconsistency in the findings as will justify a reversal. The judgment of the district court is affirmed.

All the Judges concurring.

* See 40 Pac. Rep. 919.