
    The Atchison, Topeka & Santa Fe Railway Co. v. M. C. Hale.
    No. 12,299.
    (68 Pac. 612.)
    SYLLABUS BY THE COURT.
    Practice, District Court — Special Questions to Jury. Where evidence is introduced by one party tending to establish the existence of certain material facts, and by the other party in denial, and the court submits special questions to the jury involving the existence or non-existence of such facts, to which the jury answers by saying “don’t know,” and one of the parties requests the court to retire the jury and resubmit the questions and require it to answer them, it is error to refuse such request. {Bent v. Philbrick, 16 Kan. 190; Morrow et al. v. Gomm’rs of Saline Go., 21 Kan. á8á; City of Wyandotte v. Gibson, Adm’r, 25 Kan. 236.)
    Error from Greenwood district court; O. W. Shinn, judge..
    Opinion filed April 5, 1902.
    Reversed.
    
      A. A. Hurd, and O. J. Wood, for plaintiff in error.
    
      S. F. Wicker, and Fred 8. Jackson, for defendant in error.
   The opinion of the court was delivered by

Greene, J.:

This was an action brought by defendant in error against plaintiff in error in the district court of Greenwood county to recover damages alleged to have been sustained by reason of fire escaping from a locomotive-engine of defendant while operating its line of railroad in the vicinity of his premises. The specific acts of negligence charged are that the company negligently failed to provide its engine with the latest and best improved spark-arrester, and with a proper fire-box and smoke-stack; and so negligently and unskilfully operated its engine as to permit fire to escape and ignite the grass on plaintiff's premises, adjoining its right of way.

At the trial, the plaintiff introduced evidence tending to show that the fire which destroyed his property escaped from the engine of the defendant. To meet this proof, the defendant introduced Joseph Crandall, who testified that he was a boiler-maker of eleven years’ experience, and on the evening of the 20th of October, 1889, he inspected the engine which it was alleged set out the fire, and found it in good condition and equipped with the latest and best appliances known to the mechanical department of the railroad for arresting sparks. Charles Nickson testified that he was a locomotive engineer, and was in charge of the engine at the time the fire escaped; that he had been a fireman five years before becoming an engineer, and had been an engineer since 1880; that the engine in question, at the time the fire escaped, was being handled in a skilful and proper manner; that the fireman on the engine at that time was competent and performed his duty in a competent manner; and that the engine was provided with the latest and best improvements for arresting sparks, so far as he knew.

At the close of the evidence, the court, at the request of the defendant, submitted to the jury the following, among other special questions, which were answered as follows :

“1. Ques. How was this fire.set out ? Ans. Bya locomo tive-engine. ’ ’
“6. Q. If the fire was set out by fire escaping from the defendant’s locomotive-engine, was such engine provided with proper and approved appliances to prevent the escape and setting out of fire? A. Don’t know.”
“8. Q. If the fire was set out by fire escaping from defendant’s locomotive-engine, was such engine provided with a proper and improved smoke-stack and fire-box? A. Don’t know.”
“10. Q. If the fire was set out by fire escaping from the defendant’s locomotive-engine, was such engine provided with all of the latest improved attachments to prevent the escape of fire and sparks therefrom? A. Don’t know.”
”12. Q,. If the fire was set out by fire escaping from the defendant’s locomotive-engine, was such engine properly and carefully operated at the time of the escape of the fire ? A. Don’t know.”

The jury returned a general verdict for the plaintiff. Thereupon the defendant moved the court to require the jury to retire to its jury-room and make more specific and definite answers to the above questions. This was refused by the court, to which the defendant excepted.

The only error complained of by plaintiff in error is-that the court refused to resubmit these special questions to the jury and require it to make answers thereto. Section 286 of the code (Gen. Stat. 1901, §4733) provides:

“The court shall in any case, at the request of the parties thereto or either of them, in addition to the general verdict, direct the jury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same.”

Under this statute, it is the right of a party to have special questions submitted. (A. T. & S. F. Rld. Co. v. Ayres, 56 Kan. 176, 42 Pac. 722; L. & W. Rly. Co. v. Crum, 39 id. 642, 18 Pac. 944.)

When special questions are submitted to a jury it may not ignore or refuse to answer them. A court should never submit special questions that are intended! or are liable to confuse or entrap the jury into making-mistakes, but, when submitted, it is the duty of the court to require direct answers to all such questions as are material and on which evidence has been offered. There was evidence in this case tending to establish the fact that the engine was properly equipped with the latest and best improved spark-arrester and in proper condition on the day the fire escaped, and was being properly and skilfully handled. It was, therefore, the duty of the jury to make direct answers to these questions, and it was error for the court to refuse the request made by the defendant below to have such answers made.

It is contended on the part of defendant in error that the answers “don’t know” are equivalent to answering in the negative, and counsel refer us to Morrow v. County of Saline, 21 Kan. 484 ; U. P. Rly. Co. v. Shannon, 38 id. 476, 16 Pac. 836. In the former case the plaintiff in error had not requested the court to require the jury to make- more definite answers to the questions. Mr. Justice Brewer, speaking of the effect to be given to such answers, when no objection had been made and no request to make them more definite, said:

“Here, however, the parties were content to abide by these answers ; and each party, when invited by the .court, declined to ask for further or more specific answers. Now, what construction is to be placed upon such answers ? They imply a denial of the existence, or perhaps more correctly of proof of the existence, of the facts concerning which the questions were propounded.” (Page 504.)

The latter case, while quoting the former as an authority, states that, because of other facts found in the case, the answers to the special questions of which complaint was made were immaterial.

We are of the opinion that the questions submitted to the jury were material and within the issues and should have been answered. For a refusal on the part of the court to have such questions answered, the judgment of the court below is reversed and the cause remanded.

Smith, Cunningham, JJ., concurring.  