Consolidated Kansas City Smelting & Refining Co. v. Osborne

Citations

• 66 Kan. 393
• 71 P. 838
• 1903 Kan. LEXIS 68

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Departure — Waiver. A defendant in a civil action, who proceeds to trial and submits the cause to the jury without objection to the pleadings or to the evidence, will be held to have accepted all the issues tendered, and to have waived any question of the departure of the reply from the petition.</p> <p>2. - Action for Personal Injuries — Burden of Proof. In an action for damages for injuries sustained by an employee of the defendant through the latter’s negligence, in which the issues are submitted to the jury on the evidence produced by the plaintiff alone, an instruction placing the burden of proof on the defendant ■ to establish the fact that the injury occurred through the fault of a fellow servant of the plaintiff, and explaining the state of the evidence to which the instruction may apply, is not erroneous.</p>