Sawyer v. Sauer

The opinion of the court was delivered by

Brewer, J.:

Plaintiff in error is the surviving partner of the firm of Sawyer & Ficldin, who were proprietors of a stage-coach line between Chetopa and Baxter Springs. Emil J. Sauer the defendant in error, a minor, who sues by his next friend, while a passenger in one of the coaches of’ Sawyer & Ficklin was injured, and brought his action in the district court to recover damages therefor. Verdict and judgment were in his favor for $3,500. To reverse this plaintiff in error brings the record here.

i. instructions; objects and purposes. The main questions arise on the instructions. Objection is made to the first instruction given at the instance of the plaintiff. This instruction embodies a statement of the general duties and obligations of stage-coach proprietors, and is conceded by counsel to state them correctly. The _ , . . . _ J objection is, that, being so full and general it touches upon matters not in issue, and was therefore calculated *470 to mislead the jury and induce them to consider matters foreign to the case. We do not think it open to that objection. The scope of inquiry under the petition seems to us wider than counsel state, and we do not find anything which was likely to have turned the thoughts of the jury away from the issues. The purpose of an instruction is to assist the jury in correctly applying the law to the facts of the case; and it not unfrequently happens that a general statement of the rights .and obligations of the parties to a transaction assists materially to a clear understanding of the particular obligation claimed to have been violated. It may well have had that effect in this case. At any rate, we cannot see how it prejudiced the •plaintiff in error, and that is as far as it is necessary for us to inquire.

The third instruction given at the instance of plaintiff and the refusal to give instructions of an opposite character are also alleged as error. That instruction is as follows:

“That if they believe from the evidence that Emil J. Sauer, while a passenger on defendant’s stage-coach was injured on .account of the negligence of defendant by the employment of a known drunken driver, that they the jury are not confined in fixing the damages proven, but will be justified in giving .exemplary damages.” •

2 Negligencepuniteyllmases' In Wiley v. Keokuk, 6 Kas., 94, it was decided that “whenever the elements of fraud, malice, gross negligence, or oppression' mingle in the controversy, the law allows the jury to give what is called exemplary or vindictive damages.” It is needless to re- . examine the question here. That decision settles the correctness .of this instruction; for it hardly admits of doubt that the .employment by a stage-coach proprietor of a known drunk.ard, and entrusting to his care the lives and limbs of passengers, is the grossest of negligence. The traveling .community have a right to expect that the drivers of coaches, like the engineers of locomotives, are men not only competent, but of sobriety; and whenever a known drunkard is placed in such positions of trust, the party so placing him should pay smartly for such reckless indifference, to human life. *471 But it is claimed by counsel that there is not enough in the testimony to warrant such an instruction. There was abundant testimony, and from many witnesses, showing the intoxication ■ of the driver at the time of the accident. One witness testified that he roused him out of a drunken sleep at the time ■ the stage started, and but a short time before the accident, . and helped him on to the driver’s box, he being too drunk to get up without help. There was some testimony, though not abundant or positive, yet drawn from the defendant’s witnesses, showing the use of liquor by the driver at other times, and tending to show intoxication on his part. Proof of actual knowledge by the proprietor is unnecessary. Proof of drunkenness so habitual as to be generally known in the community, is sufficient to raise a presumption of knowledge on his part. And while we think the testimony fails to show habitual drunkenness of the driver, or actual or presumptive knowledge thereof by defendant, yet it tends in that direction , sufficiently to justify the court in laying down the law in reference thereto. The question was raised as to the right to award punitive damages, and it was proper for the court to lay down the rule respecting them.

The next question arises on the second instruction given by the court of its own motion, and the refusal to give several . embodying in slightly different statements an opposite doctrine. That instruction is as follows: ■

“ If the jury believe from the evidence that the plaintiff’s negligence contributed to the injury complained of, he cannot recover. But if such negligence was only slight, or the remote . cause of the injury, he may still recover, notwithstanding such r slight negligence or remote cause.”

3. Contributory negligence. It is a general rule that where the negligence of the plaintiff contributes to the injury he cannot recover. Where there is miltual fault the law will not try to determine which is the more to blame. Yet all that is required of the plaintiff is ordinary care and prudence. He is not called upon for the exercise of extraordinary diligence .and care in averting the consequences of defendant’s negli *472 gence. Of course, what is ordinary prudence varies with the situation and surroundings. That which is ordinary prudence under some circumstances will be gross carelessness in others, so that no specific acts can be named as indicating the degree of care to be exercised. It is enough that the party does that' which ordiuarily prudent men would do under like circumstances. The rule in reference to this question is thus stated, in Shearman & Redfield on Negligence, § 29: “ Where the negligence of the plaintiff is relied upon to defeat his recovery he must have been guilty of at least ordinary negligence. His failure to take great care is no defense to the action.” See also, Ernst v. Hudson River Railroad Co., 35 N. Y., 9; Johnson v. Hud. River Rld. Co., 20 N. Y., 76; Beers v. Housatonic Rld. Co., 19 Conn., 566. It is true, some of the New York decisions say that any negligence on the part of the plaintiff will defeat a recovery; but these courts reject the idea of degrees of negligence, and hold that if one does that which ordinarily prudent men would have done, he is guilty of no negligence, so that they in fact announce no different doctrine. In this state we recognize the different degrees of negligence, and therefore the instruction is in this respect properly worded. U. P. Rly. Co. v. Rollins, 5 Kas., 167. The law does not regard the remote causes of an injury. It is enough to determine the proximate causes. “ The plaintiff’s fault must also proximately contribute to his injury, in order to constitute any ground of defense.” Shear. & Redf. on Neg., § 33; Isbell v. N. Y. & N. H. Rld. Co., 27 Conn., 293; Richmond v. Sac. Val. Rld. Co., 18 Cal., 351; U. P. Rly. Co. v. Rollins, 5 Kas., 167. Indeed, the instruction seems but to state the law as laid down in this last case, and a reference to that decision was really all that was necessary to dispose of this objection.

Several objections were raised to the admission of testimony, but none of them seem to us of sufficient importance to justify a reversal of the judgment. It is claimed that the verdict was excessive. It was for $3,500. The plaintiff’s leg was broken, with a compound fracture of the tibia. He was con *473 fined to his bed for thirteen weeks, and afterwards was on crutches for a month or two. He suffered a great deal of pain during his confinement, and occasionally since. We do not feel warranted in disturbing the judgment on this ground. The judgment will be affirmed.

All the Justices concurring.