Citation Numbers: 42 Kan. 540
Judges: Simpson
Filed Date: 7/15/1889
Status: Precedential
Modified Date: 9/8/2022
Opinion by
The plaintiff below brought this action to recover for personal injuries inflicted on him on the 6th day of November, 1885, while working under the direction and by the express command of the pit boss, by the fall of a part of the wall of an entry in the coal mine of the defendant company. The pit boss — whose authority to direct the work and employ and discharge workmen seems to be admitted —
While the petition of the plaintiff below alleges that at the time of the making of the entry the horseback was not properly or carefully supported, there was no evidence offered tending to establish it; but on the contrary, James Broscoe, the first witness for the plaintiff, below, testified that in his judgment (and he was a coal miner with; forty-four years’ experience), the accident would not have happened if the earth had not been loosened around the bottom of the supporting posts by the digging of the ditch. Holliday^ the man who made the entry, and who placed the supports in position and worked beyond them in completing the- entry, and would necessarily have some regard for his own ‘safety;’ testified that they were safe. He is a miner with a’large experience. We will not stop to rehearse the whole evidence,, but suffice it to say that there was practically no evidence tending to show negligence or want of care in the original construction, except an opinion
It is only a matter of inference that it can be said that this finding applies to the post that fell and precipitated a mass of fire-clay on Morgan. The jury were asked if the negligence of the company in the original construction was slight, ordinary, or gross, and they said it was slight. The trial court having submitted these questions to the jury, it may be said that there must have been some evidence of negligence in making the entry, but there was none except a declaration by
“Answers should be direct and positive. A case is to be tried on the evidence, and according ás an alleged fact is or is not established by that evidence,, it does or does not for the purposes of that case exist. The main object of special questions is to bring out the various facts separately, in order to enable the court to apply the law correctly, and to guard against any misapplication of the law fey the jury. It is a matter of common knowledge that a jury influenced by a general feeling that one side ought to recover,.will bring in a verdict accordingly, when at the same time it will .find a certain fact to have been proved which in law is an inseparable barrier to a recovery in accord with the general verdict. And this does not imply an intentional dishonesty in the jury, or a failure on the part of the court to instruct correctly, but rather a disposition to jump at results upon k general theory of right and wrong, instead of patiently grasping, arranging, and considering details. Scarcely any jury will, when questioned as to a single separate fact, respond that it exists, without some sufficient evidence of its existence.- Its response will as a rule be correct, if direct, and if not correct, then evasive and equivocal. And such evasive and equivocal answers always cast suspicion on the verdict.”
The case will have to be reversed because of the conduct of the jury in returning their special findings. There is not sufficient evidence to support the verdict upon the theory of negligence in construction. This view renders it unnecessary to notice the exceptions to the very voluminous instructions.
We recommend that the judgment be reversed, and the cause remanded with instructions to grant a new trial.
By the Court: It is so ordered.