below will be reversed, and cause remanded for further proceedings in accordance with this opinion. HORTON, C. J., concurring. JOHNSTON, J., not sitting. (33 Kan. 446) UNION PAC. Ry. Co. v. SHANNON. Filed April 10, 1885. 1. VERDICT-MATTERS NOT WITHIN COMMON KNOWLEDGE. A jury are not to use their own judgment in making up a verdict upon a subject calling for particular knowledge or experience, not within the general knowledge they have in common with the rest of mankind. 2. SAME-SPECIAL FINDING EVIDENCE. Where a jury, in an important special finding, disregard all of the testimony introduced, and make a finding upon a subject calling for particular knowledge or experience, without any evidence to support it, such finding not only affects the other special findings, but may also affect the correctness of the general verdict, when the evidence in the case is conflicting. Error from Leavenworth county. J. P. Usher and Charles Monroe, for plaintiff in error. HORTON, C. J. This was an action brought by the defendant in error (plaintiff below) against the railway company to recover the sum of $176, being the value of seven head of cattle alleged to have been wrongfully and negligently killed by the railway company at the crossing of a public road. The jury found a verdict for the plaintiff below, and also returned special findings of fact. Among the special findings of fact were the following: "Did the engineer of the train blow the whistle of the locomotive eighty rods west of the crossing where plaintiff's cattle were struck on the occasion of the injury? Answer. No." "As soon as the engineer saw the cattle, did he apply the air-brakes on his engine, and reverse the engine? A. No." "What is the shortest distance in which this engine could have been stopped at the speed it was going at the time of the injury? 4. 350 to 375 feet." The evidence upon the question whether the whistle was sounded 80 rods west of the crossing where the cattle were struck, was conflicting. The engineer testified, among other things, "as soon as he saw the stock, he immediately put on the air-brakes and reversed the engine, and stopped in about 300 yards." We do not find in the record any evidence conflicting with this. The engineer also testified “that the speed of the train was forty-five miles an hour; that he stopped the train in about 300 yards; that this was the quickest a train of that kind, going at the speed it was, could be stopped." There was no testimony contradicting this statement, and no other witness testified within what space an engine could be stopped going at the speed this engine was. The jury therefore not only disregarded the testimony of the engineer concerning the distance in which he might have stopped the engine, but made the finding that the engine could have been stopped in from 350 to 375 feet, without any evidence whatever. This they had no right to do. As this finding, which was important as tending to establish negligence on the part of the railway company, was made without evidence, it affects all the findings, as it goes to show that the jury were determined to make the findings, regardless of the evidence, so as to sustain a general verdict against the railway company. It also affects the general verdict, because if important special findings of fact are made by a jury without the support of evidence, it cannot be said that their general verdict, upon conflicting evidence, is entitled to much confidence. Counsel for plaintiff below suggests, however, that the jury "had the right to apply their own common sense and knowledge to the matter," and therefore they had the right to say, of their own knowledge, "that the engine could have been stopped within 350 or 375 feet." It was decided in Missouri R. R. Co. v. Richards, 8 Kan. 101, that "the jury are always in a case to use the knowledge and experience they are supposed to possess in common with the generality of mankind, in making up a verdict." And it was further decided in Anthony v. Stinson, 4 Kan. 211. that "the jury cannot be required by the court to accept as matter of law the conclusions of witnesses." These decisions are not controlling in this case. It is not within the general knowledge of persons in what space an engine or train can be stopped, going at the speed of 45 miles an hour, and equipped with the appliances as the one operated by the company at the time of the accident. To determine how long it takes to stop an engine or train requires experience in the running of trains and in checking their speed, or opportunities on the part of a person giving opinion thereof to speak as an expert. Manhattan, A. & B. R. Co. v. Stewart, 30 Kan. 226; S. C. 2 PAC. REP. 151. This was not a subject upon which the jury could use their own judgment; and if any one of the jury had any particular knowledge on the subject, he ought to have been sworn and examined as a witness. Railroad Co. v. Van Steinberg, 17 Mich. 105; Rex v. Rosser, 7 Car. & P. 648, 803; S. C. 32 E. C. L. 803; Railroad Co. v. Richards, supra. The complaint is not that the jury disregarded the opinion and statement of the engineer, in the finding, within what space an engine could be stopped, but it is that the jury not only ignored such testimony, but made their finding without any evidence to support it. The judgment of the district court will be reversed, and the cause remanded for a new trial. (All the justices concurring.) (33 Kan. 422) UNION PAC. Ry. Co. v. Diehl. Filed April 10, 1885. 1. NEW TRIAL-VERDICT CONTRARY TO EVIDENCE. It is the duty of a trial court, whenever the verdict is clearly against the weight or preponderance of the evidence, to set it aside and grant a new trial. 2. SAME-PREPONDERANCE OF EVIDENCE. Where the evidence is all in parol, and where there is some evidence sustaining every fact necessarily included in the verdict,-not a bare scintilla, but enough evidence, if not contradicted, to prove every such fact,-and where the trial court has approved the verdict by refusing to set it aside and by rendering a judgment thereon, the supreme court cannot disturb it, although a preponderance of the evidence may seem to be against it. And held, in the present case, under the evidence and the foregoing rule, that the verdict of the jury and the judgment of the trial court cannot be set aside by the supreme court, but must be sustained. Error from Riley county. J. P. Usher and Charles Monroe, for plaintiff in error. Green & Hessin, for defendant in error. VALENTINE, J. This was an action brought in the district court of Riley county, Kansas, by George W. Diehl against the Union Pacific Railway Company, for the recovery of damages sustained by him while traveling as a passenger on one of the defendant's trains. The damages were alleged to have been caused by the negligent conduct of the defendant in moving its train after it had been stopped at Brookville, on the evening of September 14, 1881, to enable the passengers to leave the train to procure supper. The particular negligence originally specified in the plaintiff's petition, was the failure on the part of the defendant to give any signal or warning that the train was about to be moved; and after the trial of the case, and after a verdict and special findings had been rendered by the jury in favor of the plaintiff and against the defendant, the plaintiff, with leave of the court, amended his petition so as to specify another particular ground of negligence, to-wit: the moving of the train "without giving a sufficient time for passengers on said train, who so desired, to alight from said train." Judgment was rendered in the court below, in accordance with the verdict and special findings, in favor of the plaintiff and against the defendant for the sum of $8,000. The plaintiff in error (defendant below) claims that the action should have been removed, on its application, from the district court of Riley county to the United States circuit court for trial. The question of removal in such cases, however, has, so far as this court is concerned, already been settled adversely to the views of the plaintiff in error by the decision in the case of Union Pac. Ry. Co. v. Dyche, 31 Kan. 120; S. C. 1 PAC. REP. 243. See, also, Myers v. Union Pac. Ry. Co. 3 McCrary, 578; S. C. 16 Fed. Rep. 292. The other questions presented by plaintiff in error (defendant below) are founded solely upon the theory that the general verdict of the jury, and many of their special findings, are not sustained by sufficient evidence. It appears that the plaintiff below, (defendant in error,) with his wife and two small children, entered a sleeping car, forming a part of one of the defendant's trains, at Bunker Hill, in Russell county, for the purpose that all might be transported as passengers on the defendant's railway to Topeka, Kansas. The wife and children rode in the sleeping car to Brookville. The plaintiff in the mean time rode in several cars on that train. There was considerable evidence introduced tending to show that the plaintiff was intoxicated, and some that he was not. Probably he was intoxicated; but the jury found that he was not. When the train arrived at Brookville, it is doubtful in what car the plaintiff was riding; but the jury found, upon the conflicting evidence introduced upon the subject, that he was riding in the sleeping car. The train stopped at Brookville, and it was announced that the train would stop at that place 20 minutes, to enable the passengers to procure their suppers. A preponderance of the evidence clearly tends to show that the train remained stationary at that place for a sufficient length of time to enable the passengers, who desired to do so, to remove from the train. There was some evidence, however, tending to show otherwise; and the jury found otherwise. A preponderance of the evidence also tends to show that, prior to the starting of the train in motion, after it had stopped, a bell was rung, giving the proper signal, and warning that the train was about to be moved. There was other evidence, however, tending to show the reverse; and the jury found that no such signal or warning was given. There was also evidence, seemingly a preponderance, tending to show that the plaintiff was standing on the platform of one of the cars while the train was moving, and that, while the train was so moving, he attempted to step from such platform onto the depot platform, when he fell and received the injuries complained of. There was evidence, however, tending to show that the train did not move. until about the time when the plaintiff was stepping from the car platform to the depot platform. The jury, by its general verdict, found in favor of the plantiff, and therefore found that the train was not moving while the plaintiff was standing on the car platform, and did not move until the time when he attempted to step therefrom to the depot platform. The evidence was conflicting as to whether the train started to move with a sudden jerk or not. A portion of the evidence tended to show that the train started with a sudden jerk; but probably a preponderance tended to show that the start was not sudden, but was easy and gradual. There was also evidence tending to show that the train, equipped as this train was, and in the condition in which this train with its engine was, could not have been moved backward or forward with a sudden jerk. The jury, however, found in favor of the plaintiff. Upon all the foregoing questions the evidence was conflicting. It was conflicting as to whether the plaintiff was intoxicated, or not; as to whether he was in the sleeping car, or not, at the time when the train arrived at Brookville; as to whether the train remained stationary, or not, after it stopped at Brookville, for a sufficient length of time to enable the passengers to remove therefrom; as to whether the train started to move without any warning or signal being given for its removal; as to whether it started with a sudden jerk, or not; as to whether the train was in motion before the plaintiff attempted to get off the same, or not; and as to whether there was a stool on the depot platform, or not, on which the plaintiff stepped when he attempted to step from the train. We think the verdict of the jury in the present case should have been set aside, and a new trial granted. It is the duty of a trial court, whenever the verdict is clearly against the weight or preponderance of the evidence, to set it aside, and grant a new trial. Williams v. Townsend, 15 Kan. 564, 570, 571; Kansas Pac. Ry. Co. v. Kunkel, 17 Kan. 172; Brown v. Atchison, T. & S. F. R. Co. 31 Kan. 2; S. C. 1 PAC. REP. 605. The supreme court, however, has no such power. Where the evidence is all in parol, and where there is some evidence sustaining every fact necessarily included in the verdict,-not a bare scintilla, but enough evidence, if not contradicted, to prove every such fact, and where the trial court approves the verdict by refusing to set it aside and by rendering a judgment thereon, the supreme court cannot disturb it, although a preponderance of the evidence may seem to be against the verdict. See the above cases, and Kansas Pac. Ry. Co. v. Richardson, 25 Kan. 391, which is especially applicable to this case; also Seip v. Patrie, 19 Kan. 13; Beal v. Codding, 32 Kan. 107; S. C. 4 PAC. REP. 180. It is, perhaps, unfortunate in many cases that the supreme court has no greater power in reviewing and in setting aside verdicts; for, because of such inability on the part of the supreme court, injustice is sometimes permitted to be done. While we think that, upon all the evidence in the case, the verdict of the jury should have been in favor of the defendant and against the plaintiff, yet sufficient evidence may be selected from the evidence introduced to make out a pretty strong case in favor of the plaintiff and against the defendant. Evidence may be selected that will show that the plaintiff was not intoxicated at the time when the train arrived at Brookville, but was then in a sober and proper condition; that he was with his wife and children in the sleeping car when the train stopped; that it was announced by the defendant's employes. that the train would remain at that place 20 minutes, to enable passengers to procure supper; that immediately after the train stopped, the plaintiff, with his wife and two children, started to leave the car; that he took one of the children in his arms and a satchel in his hand, and his wife took the other child in her arms, and both started to leave the car; that when he arrived at the platform of the car, he put the child down on such platform; that the train was not then in motion; that he then attempted to step from the car platform onto a stool on the depot platform, but that the train then started back |