Ross v. St. Louis & San Francisco Railroad

Citations

• 93 Kan. 517
• 144 P. 844
• 1914 Kan. LEXIS 464

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Federal Employers’ Liability Act — Personal Injuries — Contributory Negligence Not a Complete Defense — Mitigation of Damages — Instructions. In an action to recover damages for the death of a railroad employee by alleged negligence in switching cars in circumstances to which the federal employers’ liability act applied, an instruction was given defining contrbutory negligence, and in another instruction (No. 6) the court said that if the deceased was guilty of contributory negligence and “that said negligence directly contributed to his injury, you should take said negligence into consideration in arriving at the amount of your verdict as hereinafter explained, if you find from the evidence that the plaintiff is entitled to recover, but if you find from the evidence that the contributory negligence of the deceased, Otto N. Ross, was the sole and proximate cause of his death, then you should find a verdict for the defendant.”</p> <p>A verdict was returned for the defendant, but was set aside and a new. trial was ordered “solely on the ground that instruction No. 6 misstates the law in the last part thereof in regard to contributory negligence.”</p> <p>It is held, (1) that the plaintiff had a right to a plain and unambiguous instruction to the effect that contributory negligence was not a complete defense under the federal statute referred to but should be considered in mitigation of damages; (2) that as the language used was doubtful in meaning and confusing, and the presiding judge with full opportunity of observation believed that the instruction did not fairly and sufficiently inform the jury upon a material matter of law, the order granting a new trial will not be reversed.</p>