Kalina v. Union Pacific Railroad

Citations

• 69 Kan. 172
• 76 P. 438
• 1904 Kan. LEXIS 229

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Jury and Jurors—Special Finding Construed. When-the jury answers a special question, “We do not know,” such answer is in the negative as to one upon whom the burden falls.</p> <p>2. Railroads—Exemption from, Liability—Burden of Proof. Where a common carrier seeks to defeat a recovery because of an exemption from liability contained in its contract of carriage, the burden rests upon it of proving that the loss falls within the exemption provided for in such contract.</p> <p>3.,- Proof of Performance of Condition Precedent. Where the shipping contract contains a lawful provision requiring the shipper to do something as a condition precedent to recovery, the burden of showing the performance of such condition rests upon the shipper, and if he fail to show performance he cannot recover.</p> <p>4. -Immaterial Whether Condition Precedent be Pleaded. This rule applies not only to a case where it is made to appear during the progress of the trial that plaintiff is seeking to recover upon a shipping contract containing such condition, blit also to one where it has been counted upon in his petition or set out as defensive matter by the carrier.</p>