98 Kan. 705 | Kan. | 1916
The opinion of the court was delivered by
This is a suit to recover for personal in- , juries sustained by J. M. Roberts while working in one of the shops of the Missouri, Kansas & Texas Railway Company.
In fitting or rolling the flues of boilers an air motor is used. One of the motors used by the defendant was attached by chains to a piece of pipe or flue which was placed about seven feet high on ladders or horses near the boiler on which the plaintiff was working. It was attached so as to give the motor some play, and that it might be moved back and fortn from, flue to flue as the occasion required. To enable the workman to handle the motor a platform was made about two and a half feet above the floor of planks, supported on wooden horses. While the plaintiff was standing on this platform operating the motor the flue or cross-bar from which the motor was suspended broke, the motor fell on the platform, and the plaintiff was thrown astride of one of the wooden horses and injured. In his petition he alleged that he was in
On these findings the trial court rightly set aside the general verdict and gave judgment for the defendant. It appears to be conceded that as the case stands the defendant can not be held liable because of the defect in the flue or cross-bar. It is contended, however, that a/3 other grounds of negligence were alleged by the plaintiff and a general verdict was returned in his favor we should presume that these were established and furnish a basis for the verdict. The contrary of this contention is the rule. Such a finding in effect acquits the defendant of every charge of negligence stated in the petition or mentioned in the evidence, except the one specifically designated in the finding. (Sugar Co. v. Riley, 50 Kan. 401, 31 Pac. 1090, 34 Am. St. Rep. 123; Hayden v. Railway Co., 87 Kan. 438, 124 Pac. 165; Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 140 Pac. 105; Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999.)
It is said that a judgment against the plaintiff should not have been given because the special findings did not cover all the facts in the case. The findings made were based on ultimate and controlling facts which necessarily overthrew the general verdict. The only basis for the verdict or for a recovery by the plaintiff is that the injury suffered by the plaintiff was the result of the defendant’s negligence. Since the
It would be idle to consider the minor issues in the case as the findings made preclude a recovery against the defendant for the injury. It is said that the evidence did not justify the findings made, but the sufficiency of the evidence was not raised by the plaintiff before the trial court and is not available on this appeal.
The judgment is affirmed.