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gorical question put to it; but all doubt is friend, and recovered a judgment of $1,999 put at rest by the remaining words of the from which the railway company appeals. answer, to wit, 'Send on your paper.' These At the time of the accident he was 13 years words invited action on the part of the per- and 2 months old, and had been working as a son to whom they were addressed. They are messenger boy for the telegraph company not merely an expression of an opinion. Read for five weeks. His duties required him to in connection with the message sent by Street- cross these tracks frequently. Ile was a er, and which they were intended to answer, bright boy of ordinary intelligence. The the meaning thereof is, 'Send on your check tracks of defendant company lie east and on Tate, and we will pay it.'" North Atchi- west. The station is on the south side of son Bank v. Garretson, 51 Fed. 108, 2 C. C. the tracks, and a half block east of WashingA. 14). There is no occasion to consider what ton street which runs north and south. The words indorsed upon a check and signed by accident occurred at a point on the tracks the drawer will amount to a certification about midway between the east side of when the check is put into circulation upon Washington street and the station. The pethe credit of the indorsement. Donald, upon tition alleged that for years there had been his own request, became a party to the ac- a well-defined path across the tracks, leading tion. The court instructed the jury to find from the sikewalk, which connected with in his favor if it found in favor of the defend- the station platform, and running northwest ant bank, and, under direction of the court, to the sidewalk on the east side of Washinga verdict was returned for Donald upon ton street, and that the public was accuswhich judgment was rendered. Manifestly tomed to use it. Young Laughlin had passed

| this juilgment cannot now stand. It is there- over this path, going north, a few moments for reversed, and the cause as to Donald re- before the accident, with a message to demanded for further proceedings.

liver, and noticed the engine and cars switchThe judgment against the defendant bank ing west of Washington street. He saw them is reversed, and the cause remanded, with in- run east to hear the east side of the street, struction to sustain its demurrer to the peti- then stop and run back again to the west. tion. All the Justices concurring.

He delivered his message, got a reply requiring his immediate return to the telegraph

office which was east and south of the station. (74 Kan. 567)

On his return, and before he started across CHICAGO, B. & Q. RY. CO. v. LAUGIILIN.

this diagonal path, he saw the train backing

east, but supposed it would stop near the east (Supreme Court of Kansas. Nov. 10, 1906.)

side of the street because it had done so 1. TRIAL-INCONSISTENT FIXDINGS.

before. Ile was running slowly, and took When a jury in answer to special questions

the path across the tracks, going in a southmake certain general findings which are in the nature of conclusions, anii which are contradict

easterly direction. The engine and two cars ed by other sperial findings of fact in detail were moving east at the rate of five or six the general findings will be controlled by the miles an hour. He saw the cars moving special findings,

east of Washington street and until they were [Ed. Note.-For cases in point, see Cent. Dig. vol. 46. Trial, $8 8.57-860.]

within 10 feet of him, but thought they were 2. RAILROADS-INJURY TO PERSON ON TRACK

slowing up and about to stop. He continued CONTRIBUTORY NEGLIGENCE.

in his course, and was struck by the east end The special findings of the jury examined, of the rear box car just as he stepped in and held to establish contributory negligence of front of it. He claimed that just as he a boy 13 years of age, of ordinary intelligence, who was injured in attempting to pass in front

stepped on the track the cars gave a lunge, of a moving freight train which he saw ap

and that but for this he would have gotten proaching.

across aliead of them without injury. The Ed. Note. For cases in point, see Cent. Dig. bell of the engine was ringing all the time vol. 41. Railroads, $8 1029-1036.]

the cars were running. It was claimed that (Syllabus by the Court.)

the railway company was negligent in fail

ing to have a lookout on the rear car to warn Error from District Court, Cloud County ; IIugh Alexander, Judge.

persons of the approach of the train.

In answer to special questions submitted Action by Ralph Laughlin by Hattie Laugh

by plaintiff, the jury found that there was a lin, his next friend, against the Chicago, Bur

well-defined pathway across the tracks of lington & Quincy Railway Company. Judgment for plaintiff. Defendant brings error.

defendant company which the public used as

claimed by plaintiff, and also made the folReversed with directions.

lowing finding: Ralph Laughlin, an infant, was injured De- "Q. 1. Did the plaintiff, Ralph Laughlin, cember 6, 1902, by being run over by a exercise such reasonable care and prudence freight car, part of a train, consisting of an as might be expected from one of his years. engine and two box cars, backing east on knowledge, and experience, taking into conthe tracks of defendant company in its rail- sideration all of the circumstances and conway yards near the station at Concordia. ditions in which he was placed immediately His left leg was cut off between the knee and prior to, and at the time of, the injury? Ans, ankle. He brought this action by his next Yes."

To questions submitted by defendant com- track yards was liable to injury unless be pany, the jury made the following answers: successfully avoided moving trains? Aus.

"18. State whether or not the business in Yes." which plaintiff was engaged at the time of "68. Was the plaintiff at the time of his his injury required him to cross the tracks injury a bright intelligent boy of 13 years of of the defendant on Washington street many age, and more than ordinary intelligence for times daily. Ans. It required the crossing that age? Ans. Was of ordinary intelliof defendant's tracks several times daily." gence.”

“25. How far did the car which struck the "73. If you find that the defendant was plaintiff move after the plaintiff was injured? negligent towards the plaintiff, state in what Ans. About a car length."

such negligence consisted. State fully. Ans. “30. Did the plaintiff prior to the accident By not having flagman or brakeman at end know that a person crossing in front of a of car to warn plaintiff or others from crossmoving freight train might be injured if he ing defendant's tracks." did not cross before he was reached by the "76. What, if anything, induced the plaintrain? Ans. We are not able to state at his tiff to place himself in a position of danger, age at time of his injury.

if he did, just prior to the injury? Ans. He "31. Was the bell upon the engine ringing did not realize there was any danger.” at the time plaintiff was injured? Ans. Yes." "85. State how far, if at all, the car which

“33. State whether or not the employés of run over the plaintiff lunged or jerked just the defendant in charge of its engine at the prior to the injury; how many inches or time of the injury knew that the plaintiff feet? Ans. From 2 to 4 feet.” was upon the track. Ans. No. "34. State whether or not the employés of

Sturges & Sturges, W. W. & W. F. Guthrie, the defendant in charge of its engine at the

and Boyle, Guthrie & Smith, for plaintiff in

Park B. Pulsifer and Dwight M. time of plaintiff's injury had reason to know

Smith, for defendant in error. that plaintiff was on the track. Ans. No."

"36. Did the plaintiff prior to the accident know that switching freight trains moved ir- PORTER, J. (after stating the facts). The regularly, stopped and started and increased

only negligence of which the jury found the and diminished speed unexpectedly, and not company guilty was the failure to have a at regular times and places? Ans. No." lookout on the rear of the train to warn per

“42. State whether or not the plaintiff saw sons of its approach. It is urged that the the cars and engine of the defendant moving | findings and evidence conclusively established eastwardly just prior to his injuries. Ans. that this negligence could not have been the Yes."

proximate cause of the accident because it "44. If you answer that the plaintiff saw appears that the boy saw the cars approachthe cars moving eastwardly prior to his in- ing all the time, and had sufficient warning. jury, how far was he from such cars when However, conceding that the railway comhe first so saw same? Ans. About half a pany was negligent, the findings of fact clearblock.

ly establish that plaintiff's contributory neg"45. If you answer that the plaintiff saw ligence was such that he cannot recover. such cars before his injury, state in what Some of the findings of the jury are in a direction if any he went after so seeing such sense contradictory. In the first answer they cars. Ans. S. E.

find that he did exercise such reasonable care “46. If you answer that the plaintiff saw and prudence as might be expected from one such cars prior to his injury, and went in of his years, knowledge, and experience, and any direction thereafter prior to the injury, under all the circumstances. This finding. state whether he walked or ran, and how however, is in the nature of a general confast. Ans. Ran on dog trot.

clusion. It must give way to the force and “47. If you answer that the plaintiff saw effect of certain special facts found, facts in such cars prior to his injury, state how far detail, which cannot be said to be arbitrary he was from the cars when he last saw the Conclusions, for they are compelled by and one nearest to him before going on the tracks. rest upon evidence about which there is no Ans. About 10 feet.

conflict. Atchison, T. & S. F. R. Co. v. "48. State whether or not the plaintiff at- Plunkett, 25 Kan. 197. They force a contempted to cross the track in front of the clusion from which, in our opinion, there is cars of the defendant just prior to his injury. no escape. The boy possessed the ordinary Ans. Yes."

intelligence of one of his age, knowledge, and "56. State whether or not the plaintiff be- experience. He was past 13 years of age and fore crossing the track of the defendant just for five weeks had been about and across prior to the injury stopped and looked for these tracks daily. He attempted to run cars passing along the track. Ans. He no- around in front of a moving train of cars ticed cars about 10 feet away just before which he saw approaching and about to cross starting to cross track, but did not stop.” his path unless it stopped as he says he

"60. Did the plaintiff prior to the accident thought it was going to do. The train was understand that a person crossing railroad moving five or six miles an hour. One of

the reasons he gives which caused him to in error upon the special findings should have think the train would stop was that he saw been sustained. it awhile before moving eastward and stop- The judgment will be reversed, with direcping at a point west of there.

tions to enter judgment for defendant below. The jury found, as indeed they were bound All the Justices concur. to find from his evidence, that he understood he was liable to injury unless he avoided

(74 Kan. 599) being struck by the train; that he noticed the

CORNELIUS V. ATCHISON, T. & S. F. cars when they were 10 feet away from him,

RY. CO. but did not stop. The finding that he did not realize there was any danger is likewise

(Supreme Court of Kansas. Nov. 10, 1906.) à conclusion which must be controlled by the

1. CARRIERS-LIVE STOCK SHIPMENT-ACTION

FOR DAMAGES: previous findings to the effect that he saw

Where the plaintiff asks damages from a the train approaching, but did not stop; railroad company for negligence in carrying and that he did understand his liability to in- delivering cattle shipped over its line, alleging jury; and that he possessed the ordinary in

that it had orally agreed to carry and deliver

the cattle upon certain conditions, and the railtelligence of one of his years, knowledge, and

road company admits the receipt and shipment experience. In Atchison, T. & S. F. R. Co. of the cattle, but alleges that they were carried v. Plunkett, supra, it was said: “The jury's

under a written contract, the conditions of

which had not been complied with by plaintiff, findings are always conclusions. They can

and proof is offered on the one part that the not be otherwise; and the jury cannot in any contract of shipment was oral, and upon the case, or in any sense, find ultimate facts. other that it was written, and which tended to They can find the facts in great detail, or

show actionable negligence under either theory,

held, that the plaintiff can recover the damages they can find them in very general or com- sustained as measured by the agreement estabprehensive terms. And where they find the lished by the evidence. facts both in detail and in general terms

2. SAME--DELAY-NOTICE OF CLAIM. we may disregard the general findings. If

A provision in a live stock shipping contract

that notice in writing of the shipper's claim for the findings in detail contradict the general damages shall be a condition precedent to a findings, we may order the judgment to be recovery for any loss or injury to stock during rendered in accordance with the findings in

transportation does not cover damages such

as the loss of market or other losses occasioned detail, and wholly ignore the general findings.

by the carrier's negligent delay, and which arise For instance, where a question of negligence after transportation has ended. arises in a case, the jury cannot be allowed [Ed. Note.-For cases in point, see Cent. Dig. to say conclusively, after finding certain

vol. 9, Carriers, $ 947.] special facts, that these facts constitute negli

3. EVIDENCE-COMPETENCY.

In a controversy as to the making of an gence, when in fact and manifestly they do

agreement one of the parties to it may not not constitute negligence.” To the same ef

testify as to what he had in mind in the prefect see Central Branch U. P. R. Co. v. liminary negotiations, nor state his unexpressed Henigh, 23 Kan. 347, 359, 33 Am. Rep. 167;

intent in such negotiations. A. T. & S. F. Rld. Co. v. Brown, 2 Kan. App.

[Ed. Note.--For cases in point, see Cent. Dig.

vol. 20, Evidence, $ 440.] 604, 42 Pac. 588; A. T. & S. F. Rld. Co. v.

(Syllabus by the Court.) Plaskett, 47 Kan. 112, 115, 27 Pac. 824. The finding in this case that, under the

Error from District Court, Butler County; ; circumstances, the boy exercised such rea

G. P. Aikman, Judge. sonable care and prudence as might be ex

Action by B. H. Cornelius against the Atpected from one of his years, knowledge, and chison, Topeka & Santa Fé Railway Comexperience is necessarily a general conclusion pany. Judgment for defendant, and plainfrom the special facts found and is contradict- tiff brings error. Reversed. ed by the findings in detail. From these it T. A. Kramer and N. A. Yeager, for plainstands out clear that it required the exer- tiff in error. W. R. Smith, 0. J. Wood, and cise of only a slight degree of care on the A. A. Scott, for defendant in error. part of this boy to have protected himself from injury; that in the face of danger which JOHNSTON, C. J. B. H. Cornelius brought he sufficiently appreciated he culpably neglect- an action against the Atchison, Topeka & ed to use the knowledge and capacity which Santa Fé Railway Company to recover damhe possessed. “Although a minor, he was ages alleged to have been sustained by the bound to use the reason he possessed and to failure of the company to deliver cattle shipexercise the degree of care of which he was ped over its line from Augusta, Kan., to Chicapable.” Wilson V. Railway Co., 66 Kan. cago, Ill., in accordance with the agreement 183, 186, 71 Pac. 282, 283. See, also, A. T. of the parties and its duty in the premises. & S. F. Rld. Co. v. Todd, 54 Kan. 551, 38 It was alleged that, on September 5, 1903, 12 Pac. 804; Bess v. Railway Co., 62 Kan. 299, carloads of fat export cattle were shipped 62 Pac. 996; Mendenhall v. Railway Co., 66 from Augusta to Chicago over the defendKan. 438, 71 Pac. 846, 61 L. R. A. 120, 97 ant's line upon an oral contract that they Am. St. Rep. 380. It follows, therefore, that were to be delivered at Chicago on the mornthe motion for judgment in favor of plaintiff ing of the 7th of September, 1903, in time for the market of that day, but that the It appears that Cornelius had negotiated (attle were negligently and unskillfully han- with the local agent of the company in reviled and delayed at various stations on the gard to obtaining a special train to start line and failed to reach Chicago until the from Augusta on Saturday, and which would afternoon of September 7th, and after the arrive with the cattle at Chicago' early Nonmarket of that day had been closed. The day morning, but the agent declined to promloss sustained by reason of the negligent de- ise such a train without consulting liis sulay, was a decline in the market subsequent perior officers at headquarters. He agreed to the morning of the day when the cattle to write to Topeka and ascertain whether should have been delivered, shrinkage of the such a train could be had, and in a few days cattle while being kept until they could be reported to Cornelius that he had heard from marketed on September 9th, and cost of keep- Topeka, and that the train requested would ing them during that time. It was alleged be furnished. It appears, too, that the catthat some of the cars were negligently billed tle were export cattle for which there was a and delivered to the wrong parties by the market on Mondays, but none on the followcompany by which an additional loss re- ing day, and that cattle not sold on Monday sulted. The railway company in its answer were necessarily kept over until the Wednesadınitted the receipt and transportation of day market, and this was the reason given the cattle over its line, but arerred that they by Cornelius to the company for prompt shipwere shipped under written contracts which ment. There was considerable delay in the contained a provision “that live stock covered transportation of the cattle, and as a result by this contract is not to be transported they did not arrive in Chicago for Monday's within any specific time, nor delivered at des- market. There was a decline in the market tination at any particular hour, nor in sea- and a corresponding loss to the owner of son for any particular market.” In respect the cattle, and in addition the expense of to loss or claims for damage by shippers, the holuing the cattle until the sale could be efcontract contained a stipulation that was a fected. Testimony was offered in behalf of (ondition precedent to his right to recover the defendant, tending to show that no oral any damage for any loss or injury to said

contract was made, but that the cattle were stock during the transportation thereof, or shipped under certain written contracts at any place or places where the same may which were produced in evidence. The trial be loaded or unloaded for any purpose on the court submitted to the jury the question company's road, or previous to loading there- whether the cattle were shipped under the of for shipment, the shipper or his agent in oral contract alleged by the plaintiff, or uncharge of the stock will give notice in writ

der written ones set out by the defendant, ing of his claim thereof to some officer of

and the jury found generally in favor of the said company, or to the nearest station agent,

railway company. or, if delivered to consignee at a point be

Complaint is made of the instructions of yond the company's road, to the nearest sta

the court, and of rulings upon testimony. tion agent of the last carrier making such

In its charge to the jury the court instructed delivery, before such stock shall have been

that, if the plaintiff sustained his averment removed from the place of destination above

that the cattle were shipped under the oral mentioned, or from the place of delivery of

contract, he could recover for the loss rethe same to the consignee, and before said

sulting from the negligence of the company stock shall have been slaughtered or inter

without regard to whether any notice was mingled with other stock, and will not move

given to the company by the plaintiff of his such stock from said station or stockyards

claim for damages. The court then said until the expiration of three hours after

to the jury: "You are instructed that, if the giving such notice; and a failure to comply

plaintiff in this case fails to prove by the in every respect with the terms of this clause

preponderance of the evidence an oral conshall be a complete bar to any recovery of

tract between him and the defendant, in any and all such damages.” It was alleged

substance, such as is alleged in his petition, by the defendant that no notice of loss was

then, in that case, the plaintiff cannot regiven to the company as required by the quotel provision. Aside from a general de

(over in this action, and your verdict inust

be for the defendant. * * You are nial the answer contained a specific denial that any oral contract was made, or that its

instructed that, if you find from the evidence

that the written contracts in evidence were agent had any authority to make one. Plaintiff replied, admitting the signing of the signed by plaintiff, or his agent, after the written contracts, but alleged that thes were

oral contract claimed by plaintiff was made, signed after the cattle had been placed in

said written contracts became thereby the charge of the railway company, when the

only contracts between the parties, and train was about to start, and there was no

said oral contract claimed by plaintiff, if opportunity to read the contracts. IIe also any such existed, became merged in said alleged that he was coerced into signing thein written contract, and plaintiff cannot reby the declaration of the agent that the cat- cover in this action, unless you also find tle would not be permitted to go on the train from the evidence that the signature of unless the papers then presented were signed. plaintiff, and his agents, was obtained to

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said written contracts by fraud or coercion." The peremptory direction to find for the defendants, if it was found that the written contracts were the controlling ones, cannot be upheld. Obviously, it was based on the failure of the plaintiff to give written notice of his claim for damages within the time specified in the

in the written contracts. The plaintiff could not be denied a recovery because it was found that the damages must be measured by written contracts rather than a prior oral one. While the plaintiff alleged an oral contract, the pleadings of the parties when construed together were suflicient to warrant a recovery under whatever contract was found to have been actually made. The gist of the action was the negligence and wrong doing of the defendant, resulting in injury to the plaintiff. The agreements of the parties are important in fixing the duties and liabilities of the railway company, but, as the defendant admitted receiving and shipping the cattle and itself pleaded the terms of the contracts under which the shipments were made, it cannot urge that a recovery cannot be had for its negligence when measured by the agreements actually made, whether they be written or oral. It may, and did, urge that the written contracts are the binding ones, and that under them the plaintiff is barred from recovering damages, because he failed to comply with reasonable requirements included in those contracts.

The first stipulation relied on as precluding a recovery is that the cattle were not to be delivered within any specific time, at any particular hour, nor in season for any particular market. While, under this provision, the arrival of the cattle is not required at any fixed time, nor for any particular market, the company has not contracted, and, in fact, could not contract, against its own ordinary negligence. While limitations upon its common-law liability are permitted, it is still required to transport the cattle with due diligence and care, and it must still be liable for losses resulting from its ordinary negligence. There was a limitation in the written contracts which precluded a recovery for loss or injury to the cattle during transportation unless the shipper, or his agent in charge of the cattle, gave notice in writing of the claim to some officer or agent of the company before they were removed from the destination or place of delivery, or have been slaughtered or intermingled with other stock. This limitation has been considered and sustained. Goggins v. K. P. Ry. Co., 12 Kan. 416; Sprague v. Missouri Pacific Ry. Co., 34 Kan. 347, 8 Pac. 465; W. & W. Railroad Co. v. Koch, 47 Kan. 753, 28 Pac. 1013: Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438. The provision, however, only covers loss or injury to the cattle during the transportation, and manifestly would cover any shrinkage of the cattle during transportation. It does

87 P.-48

not cover the loss of market, or injury arising from depreciation in the market. In Railway Co. v. Poole (Kan.) 87 Pac. 165, the provision in question was interpreted, and it was held that it did not fairly cover the loss of a market. It was said: "Here the claim specified in the contract, of which notice is to be given, is confined to loss or injury to stork during transportation, and the notice l'equired to be given before the removal of the cattle from the place of the delivery or destination, and before they were slaughtered or intermingled with other stock. A loss of market differs distinctly from a loss or injury to the cattle. Depreciation in the price or the loss of a market is not fairly embraced within the terms of the contract requiring notice of loss or injury to the cattle during transportation." See, also, Kraner & Co. v. Railway Co., 101 Iowa, 178, 70 N. W. 119. The case of Kalina v. Railway Co., supra, is cited as an authority that the lack of notice bars a recovery of damages, but the contract involved in that case made the claiming of damages within a fixed time a condition precedent to a recovery of any and all kinds of damage. Railway Co. v. Means (Kan.) 80 Pac. 604, is also cited for the proposition that the giving of notice is essential to a recovery. That case followed the Kalina Case', in deciding that notice of the claim of damages was a condition precedent to a recovery, but no attention was given to the particular question involved here. It is said that the ('ontract in that case was similar to the one in question here, and that some of the daniages claimed belonged in the same class with those involved in this case. However that may have been, it is manifest that the distinction between loss and injury to the cattle during transportation and loss of a market or losses arising after delivery and resulting from the negligence of the railway company was not considered or determined. It cannot, therefore, be regarded as an allthority th:t loss or injury to the cattle during transportation is identical with loss of a market or other losses arising after transportation has ended.

If it turns out that the written contrart is binding upon plaintiff, he would still be entitled to recover damages other than for losses or injury during the transportation, and which were the result of the defendant's negligence. The peremptory direction of the court, cutting out any recovery under the written contract, was therefore error. Testimoni was offered tending to show losses for which a recovery may be had without giving the notice specified in the contract, and the jury should have been permitted to determine what, if any, damages should have been awarded.

Proof was offered by the plaintiiť tending to show that the shipment was made under an oral contract. When Nevins, the station agent of the company, testified, he was asked

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