
    No. 21,261.
    C. W. Eastman, Appellee, v. The Atchison, Topeka & Santa Fe Railway Company, Appellant.
    
    SYLLABUS BY THE COURT.
    1. Negligence — Personal Injuries — Negligence Alleged Not Proven. The plaintiff alleged that the defendant’s roadmaster directed him to board a car which it had negligently left in an unsafe condition. The jury found the negligence to consist of the direction of the roadmaster to board the car. Held, that as the negligence charged was not proved the plaintiff cannot recover.
    2. Same — Proper Special Questions. It is proper practice to request the jury to find what the defendant’s acts of negligence were.
    3. Same. A submitted question is examined and found not to contain any pitfall or trap for the unwary juror.
    Appeal from Harper district court; George L. Hay, judge.
    Opinion filed February 9, 1918.
    Reversed.
    
      William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka, for the appellant.
    
      E. C. Wilcox, Myrtle Youngberg, both of Anthony, and H. C. Kirkendall, of Cherokee, Okla., for the appellee.
   The opinion of the court was delivered by

West, J.:

The plaintiff, a section foreman, recovered a judgment for injuries received in boarding a passenger train. The defendant appeals.

The petition alleged that, being where his duties of inspecting the track and superintending the repair thereof required bim to be, he was ordered and motioned by the roadmaster, who was standing on the platform of a coach of one of defendant’s trains, to get on the back end of the coach and ride with him to the depot. That the defendant had negligently failed to provide the coach with proper steps, but had permitted them to get old and worn and slanted and covered with sleet and ice, and in attempting to get on the car he slipped and fell and was dragged and injured. The jury found that thé slipping of plaintiff’s hands off the handholds caused him to fall; that the train was moving about a mile an hour when the roadmaster motioned or told him to get on board, and four or five miles an hour when the plaintiff received his injury; that the roadmaster directed him to get on when, to any one using ordinary prudence, it was obviously of great danger for plaintiff .to make the attempt; that if he had attempted to board the car where the roadmaster was standing when first told so to do he would not have gotten on without injury; that the plaintiff was damaged $1,300, to which he contributed $300 by his own negligence.

“Q. 2. If you find-for plaintiff, then state in what respect the defendant was negligent, at the time and' place in question. Ans. The defendant company was negligent in that roadmaster Carpenter requested or signalled the plaintiff to board this train.”

It will be observed that there was no allegation of negligence on the part of the roadmaster, and the jury found none regarding the condition of the train. The' defendant therefore invokes the rule that the charged negligence was not found and hence there can be no recovery. To this the plaintiff responds that the found negligence is restricted to the immediate time and place of the injury and should be construed together with the general verdict, the finding meaning that the roadmaster was negligent in directing the plaintiff fo board the train, and the general verdict meaning that the company was negligent in respect to the condition of the car. The trouble with this argument is that the jury had a chance and were specially requested to advise the parties what the defendant’s negligence consisted of, and left out everything butt the direction to get on board, something which the plaintiff had not in his petition denounced or even denominated as negligence. (McBeth v. Railway Co., 95 Kan. 364, 148 Pac. 621; Spinden v. Railway Co., 95 Kan. 474, 480, 148 Pac. 747; Case v. Yoakum, 99 Kan. 253, 161 Pac. 642; Parks v. Railway Co., 100 Kan. 219, 163 Pac. 1066.)

The plaintiff also appeals and complains that the court permitted the jury to answer the quoted question No. 2, and also No. 9, which, with its answer, is as follows:

,, “Q. 9. Did the roadmaster Carpenter direct the plaintiff to get on the train when to anyone using ordinary prudence it was obviously of great danger for plaintiff to attempt to get on? A. Yes.”

Th'e objection to No. 2 was that it was “improper to require the jury to enumerate the acts of negligence by a question so formed, and to No. 9 that it was formed in such a way that it was liable to mislead the jury and cause an answer the reverse of their intention.” It is urged that the jury should not have been left to say what the defendant’s negligence was, but should have been given a direct question which could be answered by yes or no. This very sort of question, however, was held proper in Cole v. Railway Co., 92 Kan. 132, 139 Pac. 1177, and in Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999.

Question No. 9 is referred to by counsel as one “framed by the most skilled wording of high classed specialists, calculated to induce a miscarriage of justice,” and it is said that if the answer is yes it finds the defendant guilty of contributory negligence, and if no it finds the defendant guilty of no negligence. But this does not condemn the question which asks for something which the parties have a right to know, and in which we fail to discover any pitfall or trap to catch the unwary juror.

We have overlooked nothing suggested by either side, and fail to find in the record any error materially prejudicial to the plaintiff, but are impelled by the settled rule heretofore repeatedly announced to hold that the negligence relied on by the plaintiff was not shown,, and hence that he failed in his action and cannot recover.

The judgment is reversed with directions to enter judgment for the defendant. '  