*208Opinion by
Simpson, C.:This was an action commenced on the 13th day of August, 1885, in the superior court of Shawnee county, by Emily Jacobs, as administratrix of the estate of James Jacobs, deceased, against the Leavenworth Topeka & Southwestern Railway Company, to recover damages for the death of the intestate, caused by the negligence and carelessness of the railway company. It was tried by a jury at the January term, 1886, which returned a verdict in favor of the plaintiff below for $575, and the costs of suit. The jury returned answers to special interrogatories submitted by the court on the request of the railway company. There was a motion made before the jury were discharged, to require more specific- and definite answers to be made to certain of these special questions, that was overruled and excepted to. A motion for judgment on the special findings, and a motion for a new trial, were both overruled, and excepted to by the railway company, and the case is brought here for review. The principal errors assigned are, as to certain instructions requested and refused, some that were given, and the rulings in the various motions above recited. The facts are that the deceased, James Jacobs, a bright, active young man, about seventeen years of age, sometime in the month of May, 1884, engaged to work for the railway company, and was employed in shoveling dirt on a construction train, at a point about seven miles southwest of the city of Leavenworth. He commenced to work sometime during Tuesday, and on the following Thursday, about four o’clock in the afternoon, was killed. At the time of his death he was riding on a flat car about one-third full of dirt, that was moving at the rate of about twelve miles an hour; he was sitting on the car with his legs hanging over the side of the car, and as the car was in the act of passing a post supporting the cattle-guard fence, he raised his legs to throw them over the post, but his heels struck the post, threw him around and off from the car, he falling under the wheels of the car, and being instantly killed. The construction train *209and the gang with which James Jacobs was employed were at work at a cut called the “ Erhart cut,” and were repairing the road-bed. They were principally engaged in loading dirt on the flat cai’s of the construction train, and when the cars were sufficiently loaded, or when the construction train was obliged to pull out, to give way to a passenger or other train, the men would get upon the flat cars and ride to the place where the dirt would be dumped at a fill, or the flat cars would be run on a siding, and after the other train passed, would be returned to the cut. One of the fills was about a mile and three-quarters from and to the west of the cut. While the deceased was at work, they made two or three runs each way, thus passing from four to six times the post by which the injury was inflicted that resulted in the death of Jacobs. Between this cut and the fill there were three or four cattle-guards, the posts adjoining which were about as high as the top of the flat car and were from eight to nine inches from the side of the flat car at the top, with a slight slant toward the track. To such posts were attached the boards, and these together constituted the cattle-guards. In riding upon the flat cars, some of the men would ride with their legs hanging over the sides of the car, others would sit upon their shovels on the dirt in the middle of the cars, while others would stand erect.. Those riding upon the sides of the cars, as they approached these posts, would lift their feet and legs over the posts. The deceased had passed this particular post before, and in doing so had lifted his feet up over the same. There was evidence tending to show that the conductor, while Jacobs was working with the gang, and when he was present and within hearing of the remarks, warned the men against riding on the flat cars with their legs projecting over the sides, and against the dangers of the cattle-guards. The posts were set far enough away from the track to permit the passage of passenger and other cars, that are wider than flat cars, and the posts and fences were plainly visible to anyone passing them.
The court submitted a series of questions embodying, pre*210sumptively, inquiries as to the most material facts in issue, and necessary to the defense of the action, at the request of the railway company. We say that they were presumptively material, for the sole reason that they were submitted by the court, and the jury were required to answer them, and it is not to be assumed that the trial court would direct the jury to return special findings on immaterial matters. The jury were told in the sixteenth instruction that if they could not agree respecting the proper answers to make to any of such questions, it will be sufficient to say in place of answer, “The jury do not agree.” And if they were not able to answer any particular question for want of sufficient testimony or accurate information, it will be sufficient to say, “Don’t know.” The jurors seem to have availed themselves of this very liberal permission, and returned such answers to very many of the special interrogatories. If there was not sufficient evidence to justify an answer, the questions ought not to have been submitted. When the jurors returned their special findings, and before they were discharged, the attorneys for the plaintiff in error filed their written motion to require the jury to make direct and responsive answers to questions numbered from 3 to 11, 14, 16, 17, 22, 24, 25, 27, 28, 31, 32, 36, and 40, and this motion was overruled. We find abundant evidence in the record, from which the jury, as we think, could easily have answered directly some of these questions.
Of course the court committed error in instructing the jury that they might answer the special questions by simply saying “Don’t know,” or “Cannot answer.” ( A. T. & S. F. Rld. Co. v. Cone, 37 Kas. 567, and authorities cited.)
The practice was particularly objectionable in this case, as it is a very close question on the facts disclosed by this trial as to the liability of the railway company.
It is recommended that the judgment be reversed, and a new trial awarded.
By the Court: It is so ordered.
All the Justices concurring.