Chicago, Rock Island & Pacific Railway Co. v. Brandon

Citations

• 77 Kan. 612
• 95 P. 573
• 1908 Kan. LEXIS 312

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury to a Passenger — Burden of Proving Negligence. Where a prima facie case is made out within the rule stated in S. K. Rly. Co. v. Walsh, 45 Kan. 653, 26 Pac. 45, in favor of a passenger injured by the derailment of the train upon which he was riding, it devolves upon the railway company, in order to be relieved from liability, to show that the accident could not have been avoided by the exercise of the utmost human prudence and foresight.</p> <p>2. Instructions — Construction. Instructions should be considered and construed together as a whole, and the instructions given in this case, when so considered, were not misleading and placed no unreasonable or impracticable burden upon the railway company.</p> <p>3. Negligence — Allegations Supported by Findings. The findings of the jury that the spikes were loose in the ties, and that in making use of soft-wood ties, not sufficient to hold the spikes, the railway company failed to use the best methods of keeping its track and road-bed in safe and proper condition, support the allegations of negligence in the petition.</p> <p>4. Damages — Excessive—Remittitur. The rule that judgment may be entered for a reduced sum, and accepted by the prevailing party, where passion or prejudice of the jury is not shown, stated in U. P. Bly. Co. v. Mitchell, 56 Kan. 324, 43 Pac. 244, is followed.</p> <p>5. Practice, Supreme Court — Unsigned Memorandum Indorsed on Findings of Jury. An unsigned memorandum indorsed upon the findings of a jury, not referred to therein, and not in response to submitted questions, cannot be considered by this court as a part of the findings, in the absence of any action requested or taken thereon in the district court.</p>