84 Kan. 110 | Kan. | 1911
Lead Opinion
The opinion of the court was delivered by
The main contention is that the negligence of which the jury found the defendant guilty is not alleged in the petition nor within the issues defined by the court in its instructions to the jury; and it is claimed that the court should have set aside the general verdict and rendered a judgment in favor of defendant on the findings, or at least should have granted a new trial.
There is force in the claim that the particular negligence found by the jury is not included in the three claims of negligence specified by the court in that portion of the instructions first quoted, supra. The first claim of negligence the court properly took from the jury because there was no evidence showing that the cover was out of repair or that it was worn or rotten. By their findings the jury eliminated the second specification — that the defendant had negligently failed to place a railing around the conveyor; and it may be said that the evidence would not have warranted a finding that the defendant was negligent in this respect. Nor is the negligence found by the jury in-
The law is well settled that in actions of this kind the plaintiff must recover upon grounds of negligence alleged in his petition. (Brown v. Railway Company, 59 Kan. 70; Newby v. Myers, 44 Kan. 477; Telle v. Rapid Transit Rly. Co., 50 Kan. 455; S. K. Rly. Co. v. Griffith, 54 Kan. 428.) The principal claim of plaintiff at the trial was that the cover was worn and rotten and gave way when he stepped upon it; and while the petition did allege the failure to provide hooks or catches to keep the cover in place, so little attention was paid to this claim on the trial that the court overlooked it in the brief summary of the negligence which the jury should consider, and counsel for the plaintiff did not regard its omission of sufficient importance to challenge the court’s attention thereto. If the issue had been submitted and the jury had found that the cover slipped when the plaintiff stepped upon it, and that the negligence which was the proximate cause of the injury consisted in the failure to provide some appliance to keep the cover in. place, the judgment ought to be affirmed. It is argued that the general finding in the plaintiff’s favor and the special findings that the cover was not in place and had not been removed by some of the fellow servants of the plaintiff while he was at work should be so construed, but this requires a more liberal construction of the special findings than we feel warranted in making, in view of the pleadings and instructions. It requires us to lose sight of the particular claim of negligence which defendant was called upon to meet. It is not alleged in the petition that the cover was out of place or that it slipped from its place when the plaintiff stepped upon it.
Dissenting Opinion
(dissenting) : It is true that the petition contained allegations that the cover of the conveyor or trapdoor had become “worn, rotten, and out of repair,” as stated in the foregoing opinion, but it also contained the following averments:
“That said trapdoor was constructed of wood or lumber about one inch thick and no hooks or catches, either of wood or metal, were attached to said door or conveyor to keep it in place in its position on the top of said conveyor; . . •. that . . . said trapdoor, being rotten, decayed and in a defective condition and constructed as aforesaid, gave way under plaintiff’s weight; . . . that said plaintiff was injured as aforesaid by the willful, wrongful, unlawful, careless and negligent manner in which defendant had constructed said trapdoor, and in its failure” [Here follows an averment of failure to provide safeguards].
These averments should be held sufficient after verdict, no motion having been made to make them more definite.
The answer contained a general denial, and allegations that the conveyor was covered with heavy board coverings, fitted with shoulders to prevent slipping; that the plaintiff himself negligently removed the cover and negligently stepped into the opening caused thereby; and that the plaintiff’s fellow servants negligently removed the cover, and the plaintiff negligently stepped into the opening.
It therefore appears that the defendant met the issue of negligent and unsafe construction, not only by a general denial, but by specific averments of the manner of construction.
In his opening statement of the case the plaintiff’s attorney expressly stated, as the opinion recites, that the door gave way because, among other reasons, it was “not properly constructed, fastened or screwed down to prevent it from slipping.”
The plaintiff was injured while sweeping, without knowing that the door was there. He testified:
“I am sweeping, and when I turned around that way, I turn around to sweep on top, something turn around there at bottom of feet, machinery keep on work, I mash my foot all to pieces. . .' . Why, step on that board, my foot go down in the hole. I am turned face .down.”
The jury by its general verdict found the issues for the plaintiff.
By the special finding that a section of the cover had :not been removed before the plaintiff was hurt the jury found against the affirmative allegations of the answer that the plaintiff or his fellow servants had removed it. The finding that the covering was not in proper .place (although not removed by the plaintiff or his fellows) leaves the inference that it was out of place because not properly constructed, secured and fastened. This finding is certainly not inconsistent with the general verdict, which finds all the material averments of 'the petition not inconsistent with the special findings and not withdrawn from consideration to be true.
The averments of the petition herein recited were not withdrawn from the consideration of the jury. In a brief summary of the acts of negligence charged the ■court inadvertently, no doubt, omitted direct reference to these material allegations, but the evidence had been admitted, the jury considered it, and based a verdict thereon. The court approved the verdict, thus disregarding the omission in the instruction. This omission was not an error of which the defendant can complain, and, since the jury and the court disregarded it, is of no importance now. (Whitney v. Brown, 75 Kan. 678; Mercer v. Morrison, 83 Kan. 489.) The necessary
If any error was committed it did not affect the substantial rights of the defendant, and under the rule in force throughout the judicial history of the state should be disregarded and the judgment should be affirmed. (Civ. Code, 1859, § 148, Code 1909, § 141; The Territory v. Reyburn, 1 Kan. [Dassler’s ed.] 551; Hopkinson v. Conley, 75 Kan. 65.)