rotten and unfit for use, and negligently failed to use a proper quantity and quality of ballast on the track; and that on February 14, 1887, when the derailment occurred, the road was utterly unsafe and unfit for use. He avers that, as a result of this condition, the train was thrown from the track when running at a high rate of speed, and he was injured, as follows: "Severe wound on the left side of the head, laying open the scalp for two inches in length, cutting through to the bone; also severe contused injury of left shoulder, and to the entire scapular region of the left shoulder, tearing the scapula from its muscular attachments, and tilting it forward; and also causing a separation of the first, second, and third ribs from their sternal attachment; also causing a separation of the clavicle from its sternal attachment, throwing it forward and upward, permanently dislocating the said clavicle; also a severe contusion of the left lung, causing spitting and coughing of blood; also bruises in face and over various parts of the body." A verdict was rendered in favor of Walsh, in which the jury assessed his damages at $5,246. | the frame-work of which was solid, and that the end which projected beyond the cattle-guard was spiked to ties, but that the ties were drawn or lifted from the ground at one end about six inches, and that the soil and ballast were not filled in and tamped under and about them. If the track was in this condition, it was dangerous and unfit for use; and this defect would fairly account for the breaking of the rail and the wreck of the train. In view of this testimony, and the finding of the jury that the sectionmen did not fill the space between the tie and the ground, but left the end of the rail with the ties attached suspended several inches from the ground, and that the ties at the place of the accident were unsound, we cannot say that the verdict is without support. The company are not insurers of their passengers, nor liable for injuries resulting from unavoidable accident in the operation of passenger trains; but there is testimony tending to show a great lack of care in providing a safe road-bed and track, and, "if the defendant could have prevented the accident by the utmost human sagacity or foresight with respect to their track. then the defendant is liable." Railroad Co. v. Hand, 7 Kan. 392. It is also contended that there was error in permitting testimony to be offered by Walsh in regard to the condition of the track at other points than where the wreck occurred. Of course, testimony of defects which did not cause the derailment nor contribute to the injury was not admissible. An examination of the record indicates that the purpose of the court was to confine the testimony to the condition of the track in the immediate vicinity of the place, and near to the time where and when the train was derailed. The inquiry as to the condition of the company's track was considerably extended by both par for the purpose of determining the real cause of the wreck; but as the trial proceeded it soon became evident to all that the breaking of the rail caused the derailment of the cars, and the findings of the jury showed that they attributed the accident to this cause; and, looking at the testimony and findings together, we see nothing substantial in any of the objections to the admission of evidence. It is first insisted that the evidence was insufficient to sustain the verdict rendered, or to show any liability whatever on the part of the company. It appears that on February 14, 1887, Walsh purchased a ticket at Moline for a passage from that point over the Southern Kansas Railroad to Independence, paying therefor the sum of $1.10. The train was behind time, and when it arrived at Moline he entered one of the coaches, seated himself, and proceeded on his journey until they reached a point about two miles east of Longton, where the train was derailed. Some of the coaches were overturned, down an embankment, and Walsh was severely injured. There is testimony tending to show that the track was in bad condities, and in many cases without objection, tion where the accident occurred; that the ties were unsound, and not properly ballasted. It is shown, and conceded, that the immediate cause of the derailment was the breaking of a rail. It had been put in the track only two days before, to replace one which had also been broken at the same place. The company contends that an examination of the broken place disclosed no flaws or defects which could have been detected by the exercise of the utmost caution and foresight, and that therefore the accident was fortuitous and unavoidable, for which it should not and could not be held liable. On the other side, it is contended that, although there were no appparent flaws or cracks in the rail, it was broken, because it was not sufficiently supported by ties and ballast. Upon this question there is a sharp conflict in the testimony. The sectionmen who put in the rail two days before the occurrence of the wreck testified that the rail was placed on a solid bearing; that ties were placed under the end of the rail which broke off, and that soil and ballast were tamped about the ties so as to make the track solid and secure. On the other hand, there is positive testimony offered by Walsh that the rail which broke extended about two feet over a cattle-guard, Complaint is also made that the court erred in refusing to submit three special questions which were asked. No error was committed in this respect. A long list of particular questions were submitted and answered, and, so far as any facts inquired about in those refused were proper and material, they were covered by the questions that were submitted and answered. The principal question refused was: "Could any reasonable and ordinary foresight have anticipated the breaking of the iron rail after it had been left in the track by the workmen?" In the first place, the question is somewhat general, while only particular questions of fact are required to be submitted; and the question of how general or how particular the question of fact to be submitted to a jury, in any particular case, should be, rests very largely in the sound judicial discre tion of the trial court. Foster v. Turner, 31 Kan. 62, 1 Pac. Rep. 145. Then, again, as we have seen, the company owes a higher duty to its passengers than mere ordinary care and foresight in the construction and maintenance of its tracks. It must use the most exact diligence, and is answerable for any negligence, however slight. It is bound to exercise the highest degree of practicable care; not the utmost possible precaution that might be imagined, but the highest care and best precaution known to practical use, and which are consistent with the mode of transportation adopted. Railroad Co. v. Hand, supra; 2 Wood, Ry. Law, 1088. There is also complaint that the court erred in the instructions given to the jury. The charge was very elaborate, calling attention to some of the evidence, and it is claimed that in doing so the court indicated its opinion of the facts, and improperly influenced the jury. A reading of the entire charge satisfies us that the court expressed no opinion on the facts, and that the company was not prejudiced by the course taken. The trial judge simply called attention in a general way to the theories advanced by the respective parties, and the testimony offered in support of their theories, without indicating his view on any disputed point in the testimony. Besides, he repeatedly stated to the jury that he did not intend to express any opinion on the facts, and told them that they were the exclusive judges of the facts established by the evidence in the case, the credibility of the witnesses, and the weight to be given to the testimony of each. Special objection is taken to an instruction a portion of which reads as follows: "I may likewise say to you there is still another rule applicable to this case: That if you find from the evidence in this case that the plaintiff in this action was free from fault, and was injured, then the law presumes negligence on the part of the defendant." It is contended that this instruction was erroneous and misleading, and permitted the jury to find the com. pany guilty of negligence, and liable therefor, on the mere evidence that the plaintiff was injured. It is conceded that, if the court had added to this instruction that if the jury found that Walsh was a passenger on the train of the company, and was injured on account of a defect in the track or some of the appliances of the road or its machinery, then the presumption of negligence would arise; but, as injuries frequently happen without any fault or misconduct on the part of the company or its employes, that, therefore, the instruction was erroneous and prejudicial. The instruction complained of is not to be taken by itself, and without reference to the other portions of the charge in which it is found. The court expressly stated to the jury that the burden rested on the plaintiff to show that the injury resulted from the negligence of the company, and that negligence could not be presumed. The part of the charge criticised referred to the presumption which arises where a collision between railway trains occurs, or where a train is derailed and passen gers thereon are injured. It is well settled by the authorities that in such cases a prima facie presumption of negligence on the part of the railroad company arises, which throws the onus upon the company of disproving a want of care on its part. Proof of the occurrence of the accident, and the extent of the passenger's injury, makes a prima facie case in his favor; but this may be overthrown by showing that the injury resulted from inevitable accident, or something against which no human prudence or foresight on the part of the company could provide. Breen v. Railroad Co., 109 N. Y. 297, 16 N. E. Rep. 60; Railway Co. v. Napheys, 30 Pa. St. 135; Stokes v. Saltonstall, 13 Pet. 190; Railroad Co. v. Pollard, 22 Wall. 341; Smith v. Railroad Co., 32 Minn. 1, 18 N. W. Rep. 827; Railroad Co. v. Anderson, 6 Amer. & Eng. Ry. Cas. 407; Hipsley v. Railroad Co., 27 Amer. & Eng. Ry. Cas. 287; Railroad Co. v. Walrath, 38 Ohio St. 461; Bowen v. Railroad Co., 18 N. Y. 408: Feital v. Railway Co., 109 Mass. 398; Railway Co. v. Findley, 76 Ga. 311; 2 Wood, Ry. Law, 1096; Patt. Ry. Acc. Law, 438, and cases cited. The instruction complained of should have required a finding by the jury that the injury resulted from the de railment; but this fact was not disputed, and, as the derailment is conceded to have been caused by a broken rail in the track of the company, the omission is unimportant. In other portions of the charge the jury are advised that, if the derailment was an inevitable accident, and not the fault of the company, the law will hold it blameless and free from liability. The degree of care required of the company and of Walsh, and the rules of law appplicable to the case under the evidence that was given, were fairly stated, and we find nothing in the charge which requires a reversal. al One other objection remains, and that is that the damages awarded are excessive. Only compensatory damages were lowed, and the amount of the allowance ($5,246) was itemized by the jury, as follows: "For suffering in the past, $1,000; for suffering in the future, $1,000; for inability to perform physical labor, $3,000; for physician's bills, $150; for board and lodging, $42; for loss of time, 18 days, at $3 per day, $54. While it appears to us that the amount awarded is liberal, we cannot say that the jury acted corruptly, or under the influence of passion, partiality, or prejudice. At the time of the accident, Walsh was 31 years of age, in excellent health, and held the position of United States pension examiner, the compensation of which was about $2,500 per year. Dr. McCulley, who examined him shortly after the injury occurred, found a wound on the back of his head two inches in length, and half an inch deep; a fracture of the clavicle bone, near the middle breast-bone; a complete fracture of the first, second, and third ribs; the scapula was thrown out of its natural position, and one of the large muscles which held the scapula was torn from its attachment; the pleura which surrounds one of the lungs was ruptured; and he also found a continual coughing, and an occa the sional coughing up of blood. On a subsequent examination, shortly before trial, the same witness stated that he found a vesicular condition of the lungs, and inability to expire air, and that it was his opinion that his ability for labor was greatly impaired, and perhaps to the extent of one-half; that the effect of his injury would be to render him liable to attacks of asthma and diseases of the lungs, and to shorten his life. Dr. Masterson, one of the surgeons of the railway com. pany, examined Walsh shortly after his injury, and discovered the same fractures and injuries that were found by Dr. McCulley. He also found that there was an emphysematous condition of the lungs, and that the upper lobe of the left lung was injured. There was also a cough, and bloody expectoration. That, on account of a rupture of the lung tissue, the air escaped and passed through the pleura of the lung into the cellular tissues. On another examination, shortly before the trial, he found that there was a dilation of the air vessels, and enlarged condition of the terminal ends of the bronchial tubes, and that, in his opinion, Walsh would never fully recover from the effects of the injuries. Another physician who examined him stated that the effect of the injury would be to weaken his lungs, shorten his life, and occasion him pain and suffering. Walsh testified that he had suffered great pain from the injuries until the wounds were healed and the boues united: that the injuries had greatly affected his general health; that he had continuous pain in the region of his kidneys, a bloody discharge with his urine, a continuous cough, with pain in the lungs; that his powers of endurance were greatly lessened, and his ability to perform manual or mental labor was not more than onehalf of what it was prior to the injury. The testimony shows that the injury, which has already caused Walsh great pain and suffering, is of a permanent character, that it greatly impairs his abil. ity for labor, will subject him to discomfort and pain during the future, and render him less able to resist or recover from other diseases hereafter. In view of the age, former good health, and earning capacity of Walsh, and his condition as shown by the testmony referred to, we do not feel warranted in interfering with the verdict upon the ground that the award of damages is excessive. The judgment of the district court will be affirmed. All the justices concurring. (45 Kan. 515) CARTWRIGHT V. KORMAN. (Supreme Court of Kansas. March 7, 1891.) RECOVERY OF LAND SOLD FOR TAXES-LIMITATIONS-TAX-DEED. 1. The limitation provided by section 141 of the tax law is not modified or limited by section 17 of the Civil Code, nor are persons who are insane excepted from its operation. 2. A tax deed recited that four lots on a certan street of a city, describing them, were subject to taxation for a certain year, and, the taxes not being paid, they were sold separately to a single purchaser. In the recitals of the sale the description of each is distinct from the others, but all stand described together in the body of the deed. In the subsequent recitals relating to assignment and redemption they were all referred to as "said property." The granting clause then provides that in consideration of the taxes due and paid on "said land” the county clerk conveys to the purchaser "the real property last herein before described. " Held, that the deed was valid on its face, and effectually conveys all four of the lots. (Syllabus by the Court.) Error from district court, Shawnee county; JOHN GUTHRIE, Judge. Hazen & Isenhart, for plaintiff in error. J. D. McFarland, for defendant in error. JOHNSTON, J. This was an action in the nature of ejectment to recover the posses sion of lots 28 and 30 on Harrison street in the city of Topeka. Amelia Korman was the owner of the lots named in 1862, and still continues to be the owner, unless she has been divested of her title by a taxdeed executed and delivered to S. S. Cartwright on November 15, 1878. Amelia Korman has been of unsound mind ever since 1869, and on July 16, 1877, she was duly adjudged by the probate court of Leavenworth county to be insane and incapable of managing her own affairs, and immediately afterwards she was committed to the insane asylum, where she has since remained, never having been restored to her right mind. In May, 1873, the lots in question were sold for the taxes of 1872, and on November 15, 1878, they were conveyed by tax-deed to Cartwright, as has been stated, and the deed was duly recorded on the same day. The property was vacant and unimproved when the conveyance was made and until September, 1879, when Cartwright took possession of the same and erected buildings and fences thereon, and has continued in possession ever since that time. In July, 1877, B. Korman was appointed guardian of the person and estate of Amelia, and has continued to be such guardian till the present time. The district court found these facts, and also what the rental value of the lots would have been in an unimproved condition as well as in their improved condition for the time Cartwright has been in possession. It also found that the proceedings upon which the tax-deed was based were irreg ular, and insufficient to sustain the deed, and thereupon rendered judgment in favor of Amelia Korman and against S. S. Cartwright for the possession of the lots, and for $1,209 damages for the unlawful withholding of the same. The main question presented by the record is whether the irregularities mentioned are now available to defeat the deed, or whether they have been cured by the limit. ation prescribed in section 141 of the tax law. It reads as follows: "Any suit or proceeding against the tax purchaser, his heirs or assigns, for the recovery of land sold for taxes, or to defeat or avoid a sale or conveyance of land for taxes, except in cases where the taxes have been paid or the land redeemed as provided by law, shall be commenced within five years from the time of recording the tax-deed, and not thereafter." This section is broad and general in its terms, and makes no exception of persons under disabilities. The limitation begins to run immediately state that this position was not sustained upon the recording of the tax-deed, and against all persons except in such cases, and against such persons, as are expressly excepted from its operation. The only exception provided is where the taxes have been paid or the lots redeemed as provided by law. Provision is made in the Code whereby persons who are under disability such as infancy or insanity when the cause of action accrues may bring their action within two years after the disability is removed. Civil Code. § 17. But section 141 of the tax law is not modified, controlled, or limited to any extent by the provisions of the Code. It has been determined that it is complete in itself, except so far as it is modified by other provisions of the tax law. Beebe v. Doster, 36 Kan. 666, 14 Pac. Rep. 150. See, also, Edwards v. Sims, 40 Kan. 235, 19 Pac. Rep. 710. Our attention is not called to any provision of the tax law which modifies or limits this provision, except section 128 of that statute. It provides that minors may redeem lands sold for taxes at any time before they become of age, and one year thereafter. It also provides that the lands of idiots and insane persons may be redeemed at any time within five years after the sale in the manner provided in the tax law. In section 127 of the tax law the ordinary period of redemption is fixed at three years, and certainly, if there had been no exception to this general provision, neither minors nor insane persons could have had longer time than three years in which to redeem. The right to redeem is purely statutory, and the legislature having made the exceptions named, indicates that no others were intended. For the same reason the period for bringing actions to defeat or avoid a sale or conveyance of land sold for taxes as provided in section 141 cannot be extended, nor can any cases be excepted from its operation beyond those expressly provided by the legislature. An insane owner may bring an action to defeat the taxdeed within five years after the recording of the same, and may redeem or institute proceedings to redeem within five years after the sale of land for taxes. Taking the two provisions together, it is manifest that insane persons are not excepted from the operation of section 141. How-ed, with direction to give judgment in faever wise and politic it might be to give persons laboring under the disability of insanity a longer time in which to redeem or to begin an action for the recovery of land sold for taxes, the courts have no power to extend the time of limitation beyond that fixed by statute. The legislature alone has this power. In this case the guardian was appointed prior to the execution of the tax-deed, and before the expiration of the time to redeem the land or to bring an action to defeat the taxdeed for irregularity. He neglected to take any steps to redeem or recover the property, and the responsibility for any loss or damage occasioned by his neglect to protect the interests of the estate rests upon him. There is a further contention that the dred is void on its face, and therefore Cartwright acquired no right of possession under it; but counsel for plaintiff in error v.261.no.1-4 vor of plaintiff in error. All the justices concurring. (45 Kan. 520) MISSOURI PAC. RY. Co. v. BAXTER. (Supreme Court of Kansas. March 7, 1891.) RAILROAD COMPANIES-KILLING STOCK - FENCES. 1. Whenever it is shown that a railroad has not been fenced, and that an animal has passed upon the track and been killed or injured, a prima facie case has been made out against the company. Railway Co. v. Bradshaw, 33 Kan. 533, 6 Pac. Rep. 917, cited and followed. 2. The laws of this state impose an obligation upon railroad companies to fence their tracks against all animals against which a good and lawful fence would be a protection. 3. The fence law makes a distinction as to animals and lawful fences. Where hogs are permitted to run at large, a certain fence is a lawful one; where they are not allowed to run at large, another standard is adopted. (Syllabus by Simpson, C.) Commissioners' decision. Error from district court, Dickinson county; M. B. NICHOLSON, Judge. Waggener, Martin & Orr and Stambaugh, Hurd & Dewey, for plaintiff in error. John H. Mahan, for defendant in er ror. SIMPSON, C. Baxter commenced this action before a justice of the peace in Dickinson county to recover from the railway company for killing and injuring certain sheep belonging to him. The case was tried before the justice, and then appealed to the district court. A trial was had before a jury at the October term, 1887, and a verdict and judgment rendered in favor of the defendant in error for $90 damages, and $33 attorney fees. At the trial in the district court it was shown that Baxter kept about 320 sheep in a large pasture, through which the track of the defendant's road was located. This pasture was in one inclosure, and fenced with a barb-wire fence, sheeptight. The fence consisted of five wires stretched tightly from post to post, the posts being two rods apart. The top wire is about four feet from the ground. There is a space of fifteen inches between the first and second wires, a space of ten inches between the second and third wires, and a space of about nine inches between the third and fourth wires, and a space of from five to seven inches between the fourth and fifth wires; the latter wire being about four inches from the ground. The railroad track running through the pasture was not fenced. On the 10th day of April, 1887, 12 sheep were killed and 17 injured by the engine and cars of the railroad company. These were all killed or injured in the pasture. The negligence of the railroad company consisted of the fact that they had neglected to fence their track. When the plaintiff below rested his case, the attorneys for the railroad company demurred to his evidence, and the overruling of this demurrer is their first assignment of error. The theory of the demurrer was that, if the railroad company had inclosed their track with a fence composed of posts and three wires, it would not have prevented the sheep from going onto the railroad track. All the law requires of a railroad company, to escape the charge of negligence, is the construction of a lawful fence. If such a fence, as a matter of fact, would not prevent the sheep from getting on the railroad track, yet the compliance of the company with the statutory requirement would relieve it from all damages. The law declares the material, height, and construction of a lawful fence. Its function is to secure the growing crops, the grass, and the live-stock of the land-owner from injury and damage. As a matter of legal presumption, a lawful fence is amply sufficient to protect the track from the invasion of live-stock and trespassing animals. The defendant in error, on cross-examination, virtually admitted that a fence whose lower wire was two feet from the ground would not be a protection to all the sheep; that some could pass under the lower wire of such a fence. The rail road stock law of 1874 imposes an obligation upon railroad companies to fence their tracks against all animals against which a good and lawful fence would be a protection. Railway Co. v. Roads, 33 Kan. 640, 7 Pac. Rep. 213; Railway Co. v. Bradshaw, 33 Kan. 533, 6 Pac. Rep. 917 Whenever it is shown that a railroad has not been fenced, and that an animal has passed upon the track and been killed, a prima facie case has been made out against the railroad company. Railway Co. v. Bradshaw, 33 Kan. 533, 6 Pac. Rep. 917. How legal fences are to be constructed is plainly set forth in chapter 40, Gen. St. 1889. The contention in favor of the demurrer to the evidence in this case assumes that a post and wire fence such as is described in paragraph 3062 of the General Statutes is the fence that a railroad company is obligated to build; whereas the law requires such a fence as will keep all animals off of the track. There was no showing as to whether hogs were permitted to run at large in the township in which the pasture was situated; and we think it was incumbent upon the railroad company to show affirmatively what would have been a legal fence in that township, and that such a fence, if built, would not have kept the sheep away from the track, in order to escape liability. There was no error in overruling the demurrer to the evidence. Exceptions were taken to certain instructions given by the court, but the brief only criticises the seventh. It says: "It is not a question of negligence. The question is, did they have their railway fenced? If they did not, and if they killed this man's sheep on his premises, and failed and neglected to fence their right of way as it ran through his pasture, then they are liable to pay him the full value of the animals killed or injured." It being incumbent upon the railroad company to show a lawful fence, or, if they had a lawful fence, it would not have kept the sheep off the track, and no such showing having been made, the instruction is not error. We recommend an affirmance of the judgment. 1. It is the duty of a railroad company operating a railroad to see that the proper cattleguards exist wherever the track of the operated railroad enters or leaves inclosed or fenced land, whether such railroad company owns or is operating the railroad under a lease. 2. In an action for damages, caused by the neglect of a railroad company, operating a railroad that it owns or leases, to keep the cattleguards in repair at the place the track enters and leaves the inclosed or fenced land of the complaining party, that party has the right to in clude in his claim for damages the value of his services, and that of his children, in driving out and berding stock to prevent further and additional damages. (Syllabus by Simpson, C.) |