Buoy v. Clyde Milling & Elevator Co.

Citations

• 68 Kan. 436
• 75 P. 466
• 1904 Kan. LEXIS 124

Syllabus

<p>SYLLABUS BY 'THE COURT.</p> <p>1. Practice, District Court — Demurrer to Evidence. A ruling on a demurrer to the. evidence is a decision of law occurring at the trial, which is subject to reconsideration on a motion for a new trial.</p> <p>2. —-New Trial Improperly Granted for Overruling Demurrer to Evidence. Where a new trial is granted upon the sole ground that error was committed in overruling a demurrer to the evidence, after having denied the motion on other .grounds, including one that the findings and verdict were not sustained by sufficient evidence, the case is in the same situation and the court governed by the same rules in passing upon the evidence as when the demurrer was originally considered and decided; and if there was substantial evidence tending to sustain the cause of action stated in plaintiff’s petition, the granting of the motion for a new trial was erroneous.</p> <p>3. -Proper Consideration of Such Motion for New Trial. When considering that ground of the motion the court could not weigh the evidence for the purpose of settling conflicts in it, and could not allow the motion unless it was able to say that, admitting every fact proved which was favorable to plaintiff, and admitting everything which was fairly inferable from the evidence most favorable to the plaintiff, he has failed to make out some one or more of the material facts of his case.</p> <p>i. Master and Servant — Duty of Master — Assumption of Servant. The furnishing of a safe place to work and safe appliances with which to do the work is among the absolute duties of the master; and unless the servant’s attention is drawn to defects or • the dangerous condition of the place or the appliances furnished, or he should have known of them, he is not required to make an investigation, but may rest upon the assumption that the master has performed his duties in these respects.</p> <p>.5. -Facts do not Warrant Assumption of Negligence or its Absence. Under the facts of this case it can