97 P. 1134 | Kan. | 1908
The plaintiff, a lineman of the defendant, recovered damages from his employer on account of injuries sustained while cutting a live wire. The jury found specially that the right of recovery rested upon negligence in failing to turn off the current. The case was submitted under instructions which left the jury free to find that the negligence was that of a vice-principal, the negligence of a vice-principal combined with that of a fellow servant, or the negligence of a fellow servant. The jury found specially that the negligence causing the injury was that of a fellow servant. Under these circumstances the right to recover was negatived.
It is argued that the finding adverted to did not exclude other negligence, but it can not be so interpreted. It is further argued that the finding is a mere conclusion and not binding on the court. It is a conclusion only in the sense that it is an ultimate fact depending upon a synthesis of ■ several facts and relations. It is not a conclusion of law.
The judgment is reversed, and the cause is remanded with instruction to enter judgment for the defendant on the findings of fact.