93 Kan. 668 | Kan. | 1915
The opinion of the court was delivered by
In a petition for rehearing complaint is made that the second paragraph of the syllabus (Byland v. Powder Co., ante, p. 288, 144 Pac. 251) is misleading, because it leaves the inference that appellant after alleging the-specific acts of negligence relied upon, had contented himself .by" merely proving that an explosion occurred, and had attempted to invoke the doctrine of res ipsa loquitur. The paragraph in question was, of course, intended to be read in connection with the preceding paragraph, wherein it was ruled that the trial court correctly sustained the demurrer to the evidence for the reason that there was no substantial proof, direct or circumstantial, fairly tending to prove the cause of the explosion. It was and is the understanding of the court that in appellant’s brief it was
■ The syllabus, therefore, merely followed the opinion in stating that, having failed to produce evidence that the explosion was caused by the specific negligence alleged, the doctrine of res ipsa loquitur could not be relied upon.
There is a complaint, too, that the opinion does some injustice to appellant’s claim respecting the factory act. From a careful reexamination of the briefs it appears that appellant’s third contention was substantially as stated in the opinion, that, without conceding any failure of proof of the cause of action at the common law, he relied also upon the factory act. We held that none of the provisions of the factory act apply, and having already disposed of the other contentions of appellant, the opinion proceeded upon the theory that the judgment must be affirmed.
It is true the opinion states that “no evidence was
Decisions were cited in the opinion wherein the facts upon which they turned were different from those involved in the present action. They were referred to as illustrating some principle of law which the court believed was involved in a discussion of the contentions raised by appellant.
That appellant was not willing, as stated in the opinion, to rest his case alone upon the sufficiency of proof of circumstances showing that the explosion resulted by friction of a butterfly thumb-nut hanging in the rolls, but further contended that, the case should have been submitted to the jury to permit them to find what probably caused it, appears from his original brief.
“The evidence also shows that defendant was negligent in not requiring the press men to change their shoes just as they entered the door of this mill instead of at the wash house where they must then walk over the dangerous grit on the paths and tramways before going into the mill. . . . The defendant was very careless in permitting the horse to walk from the cinder, sulphur rock and clay ballast, into the powder on. the floor. . . . From the circumstances of the men walking over the cinder covered path and tramway into the raw mixed explosive material in the press mill and the horses walking on the clay, sand, cinders, sulphur rock, etc., at the side of the track on the tramway and from there into this explosive material in the mill we think the evidence shows, in addition to the heat caused by the friction of a butterfly thumb-nut hanging in the rolls at the time of the explosion,*671 that' a piece of this grit from the paths and tramways probably came in contact with the pinched thumb-nut, and produced a spark or additional friction which ignited the surrounding powder and caused the explosion.” (Italics ours.)
In the former opinion it was held that the cause could have been submitted to the jury only for the purpose of permitting them to speculate and conjecture what caused the explosion. We adhere to this conclusion, and the petition for rehearing will be denied.