Atchison, Topeka & Santa Fé Railroad v. Davis

The opinion of the court was delivered by

Horton, C. J.:

The railroad company— defendant below —challenged the array, and objected to the trial by the jury present upon the ground that it had not been selected and summoned in accordance with the provisions of the statute. (Comp. Laws of 1879, ch. 54, § 2.) The trial was had at the June term of court for 1884. The testimony introduced shows that the jury were drawn May 3d from the jury list selected in 1883 from the assessment rolls of 1882 — the preceding year. In fact, the list for 1884 was not made up and put in the jury box until May 15, 1884, several days after the jury were drawn. Two names drawn and summoned on the jury were not returned as jurors for 1883, and the explanation given as to their names being in the box is the surmise that they were left in there prior to the making of the jury list for 1883. Upon these facts, the challenge to the array was properly overruled. At most, there was an irregularity attending the drawing of the jurors, but there was no purpose on the part of the officers to neglect or refuse to comply with the statute in the listing and selection of jurors for the June term of court. The court had ample power to purge the jury, without sustaining the challenge to the array. (Dolan v. People, 64 N. Y. 485.) This case is therefore different from the facts stated in The State v. Jenkins, 32 Kas. 477. Here, the officers attempted to comply with the statute and draw the jurors from the class or list prescribed, and all the jurors were so drawn, with the exception of two only. In The State v. Jenkins, the essential provisions of the statute were palpably disregarded.

It is next urged that there was no sufficient evidence to hold the railroad company liable for damages, and that the court erred in instructing the jury as follows:

“That what is true of individuals is also true of corporations, in this respect: That one may be the servant of the other, and the servants of the one may be under the control and direction of the other. In determining the liability of the defendant in this case for the acts of the men in charge of the train in question, the true test is, what company had the control and direction of the men in the operation of that train at the time? Was it the defendant, or some other company? If it was not the defendant, it is immaterial for the pui’poses of this case who it was; the defendant would not be liable. But if the defendant in fact exercised the actual control of the men in the management and operation of the train, it would be liable for the negligence of the men in the operation of the same, notwithstanding the men were at the time the servants and engaged in the business of another company.”

The evidence showed that on December 26,1883, while the plaintiff below was attempting to cross a railroad track operated by the A. T. & S. E. Rid. Co., at a street-crossing in the city of Wichita, with a two-horse farm wagon and team, he was run into by a locomotive and train of cars backing upon the track. This train was being used in constructing the Wichita & Western Railroad. The rear car of the construction train was loaded with telegraph poles, some of which extended beyond the rear end of the car several feet. The wagon of plaintiff below was struck by one of the timbers on the car, and he was knocked out and severely injured. The contention on the part of the railroad company is, that if any company is liable, the Wichita & Western Railroad Company is the only one liable for the injuries complained of.

The charter of the Wichita & Western Rid. Co. was introduced in evidence, from which it appeared that on May 17, 1883, the charter of that company was filed in the office of the secretary of state. The directors or trustees of the company appointed for the first year were: William B. Strong, president of the A. T. & S. E. Rid. Co.; A. E. Touzalin, then vice president of the A. T. & S. E. Rid. Co.; C. C. Wheeler, then general manager of the A. T. & S. E. Rid. Co.; A. A. Robinson, then assistant general superintendent and chief engineer of the A. T. & S. F. Rid. Co.; Edward Wilder, secretary and treasurer of the A. T. & S. F. Rid. Co.; George R. Peck, then general solicitor of the A. T. & S. F. Rid. Co.; and J. F. Goddard, traffic manager of the same road. The parties who subscribed the charter were: A. A. Hurd, assistant attorney of the A. T. & S. E. Rid. Co.; Robert Dunlap, an attorney of the A. T. & S. E. Rid. Co.; E. Wilder, secretary and treasurer of the A. T. & S. F. Rid. Co.; George R. Peck, then general solicitor of the A. T. & S. F. Rid. Co. ; and one W. W. Allen. Before this charter was filed, however, at a meeting of the directors of the A. T. & S. Rid. Co. held in Boston, Mass., on May 15, 1883, the following proceedings were had regarding the construction of a railroad from Wichita to Kingman, subsequently known as the Wichita & Western Rich Co.:

“ On motion of Mr. Cheney, seconded by Mr. Pierce: Noted, that the president is authorized to take the necessary steps for occupying the country west of Wichita, by the purchase of the right-of-way, and construction of a grade west for about forty miles, at a cost not to exceed $65,000.

“The question of the further construction of this line to be postponed until some future day; the construction to be done by the Atchison company alone, or by the Atchison and St. Louis & San Francisco, as may be found to be in accordance with our treaties with said San Francisco company.”

On August 7, 1883, at another meeting of the board of directors of the A. T. & S. F. Rid. Co. held at Boston, Mass., the following proceedings were had:

“On motion of Mr. Burr, seconded by Mr. Pierce: Noted, that the president is authorized to take the necessary steps to complete the construction of the road called the Wichita & Western, from Wichita to the town of Kingman, about forty-three miles distant — the road to be built to serve the purpose of a local line, and with old iron.

“The question of the ownership of the property by the Atchison company alone, or by the Atchison, St. Louis & San Francisco conjointly, is to be arranged hereafter as may be found to be in accordance with our treaties with said San Francisco company.”

On January 2, 1884, at a meeting of the board of directors of the A. T. & S. F. Rid. Co., it was—

“Noted, that the president, vice president and Mr. Thomas Nickerson be a committee to consider and recommend to the board what course to pursue with regard to any claim on the part of the St. Louis & San Francisco Railway Company of a joint interest in the line from Wichita west, with authority to employ counsel.”

In addition to these resolutions, evidence was also offered on the part of the'plaintiff below, tending to show that the Wichita & Western Rid. Co. was a mere servant or agent of the A. T. & S. F. Rid. Co.; that the latter company had the control and direction of the men operating the train which struck the wagon; that the track upon which the collision occurred had been used and operated by the A. T. & S. E. Rid. Co. for many years, and was generally known as that of the A. T. & S. F. Rid. Co.; that the engine and cars used in the construction of the Wichita & Western Railroad belonged to the A. T. & S. F. Rid. Co.; that the pay-checks and pay-rolls of the employés engaged in the construction of the Wichita & Western Railroad were indorsed and countersigned by the general officials of the A. T. & S. F. Rid. Co.; and that the A. T. & S. F. Rid. Co, operated the Wichita & Western Railroad after it was completed.

There was some evidence offered explanatory of all this, tending to show that the construction train was leased to the Wichita & Western road by the A. T. & S. F. Rid. Co.; that the individuals connected with the A. T. & S. F. Rid. Co. who were officers of and interested in the construction of the Wichita & Western Railroad, were engaged by that company and acting in its behalf. It is quite clear, however, from the resolutions of the board of directors of the A. T. & S. F. Rid. Co., that the Wichita & Western Railroad was constructed by that company; that it was owned by that company; and that in January, 1884, the A. T. & S. F. Rid. Co. was resisting the claim of the St. Louis & San Francisco Railway Co. to a joint interest therein.

Railroad comfngiiioS*" railroad ior liability for negugenoe. This is not a case showing that the A. T. & S. F. Rid. Co. is merely a stockholder in the Wichita & Western Railroad, but the evidence conduced to show that the A. T. & S. F. Rid. Co., being a great railroad company ,. , ° , . , , operating a long line oi road m this state, projected and constructed the Wichita & Western Railroad, and controls and manages the same for the purpose of a local line. We think, therefore, that there was sufficient evidence to sustain the instructions of the court and justify the verdict and judgment. The trial judge was careful in his instructions to conform to the ruling of this court in Railway Co. v.Bitz, 30 Kas. 31, and said to the jury that “the mere fact that the same men were officers of the A. T. & S. E. Rid. Co. and also of the Wichita & Western Railroad Co. was not sufficient evidence to justify a finding that the two companies were one and the same.”

The special findings of the jury are criticised as evasive and untrue. We find that three or four of these were simply answered by the jury, “Don’t know.” Of course, answers to questions should be direct and positive, and therefore there was an irregularity in the answers. No application was made, however, to the court for the jury to correct their answers; and in view of the resolutions of the board of directors of the A. T. & S. F. Rid. Co. concerning the construction of a road from Wichita to Kingman, with old iron, to serve the purpose of a local line to be owned by that company, we cannot say that the latter company was likely to be injured or prejudiced by any answer touching the purpose of the incorporation of the Wichita & Western Railroad Company. Neither do we consider the other defective answers sufficiently material to set aside the verdict or reverse the judgment. A reading of the record does not convince us that any answer is wholly untrue.

“This court will uphold the general verdict, unless the facts as. obviously disclosed by the answers to the special questions are inconsistent therewith and compel a different judgment, or unless the answers are so directly and plainly contradictory as to. show that the jury gave no intelligent attention to either the testimony or questions, or unless some special facts appear to show that there has been a mistrial or a failure of justice.” (Railway Co. v. Holley, 30 Kas. 465.)

The judgment of the district court will be affirmed.

All the Justices concurring.