61 P. 327 | Kan. Ct. App. | 1900
The opinion of the court was delivered by
The plaintiff in error, as plaintiff in the district court, brought her action against the Leavenworth Light and Heating Company to recover the sum of $1000 damages alleged to have been sustained by her by reason of a fire caused by the negligence of the company. The defendant denied generally, and plead, contributory negligence, to which a general denial was filed in reply. The case was tried to the court and a jury, and upon the conclusion of the evidence each party asked that a verdict be directed in its favor. Thereupon the court refused the request of the plaintiff and directed the jury to return a verdict for the defendant, which was done, and
In considering this case we shall assume that each party having requested the court to instruct the jury to direct a verdict in its favor, and neither party demading that the facts be submitted to the jury, the verdict as directed has the same force and effect as if it had been found by the jury in the usual way, although upon this proposition the writer of this opinion has some doubts, and the only question is, Does the evidence sustain the verdict?
It seems to us reasonably well established by the evidence that the damage was caused by the negligence of the company, and there was no serious conflict of the evidence upon this question. We do not think it material whether Walker was superintendent or electrician; he was the person who was representing both companies at the respective times they had charge of the plant. Nor is it important to decide whether this action should be properly defined as an action ex contractu or .an action ex delicto. When companies or persons engage in a dangerous business they impliedly contract with their customers and the public that they will use such appliances and care as are known to the business to protect the persons and property of their customers and the public from harm, and no matter how many hands the business may pass through, each one succeeds to the same duty and obligations. As indicated by the brief of the defendant in error, the district court seems to have been of the opinion that the action was based upon the contract made at the time the lights were first furnished the plaintiff by the defendant company, which was a different entity from the one sued, and that upon this basis this action could not be sustained. But we do
The judgment of the district court is reversed and said court directed to award a new trial.
