Every v. Rains

Citations

• 84 Kan. 560
• 115 P. 114

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Admissions—Pleadings in Another Action. Where a petition is filed in an action by a party who becomes a defendant in another action, it may be used in evidence on the trial of such other action against the party who filed it, if it contains statements material to the issue on trial, in the nature of admissions or allegations tending to contradict his testimony.</p> <p>:2.: Instructions — Applicability to Issue — Reading Petition Charging Other Acts of Negligence to Jury. Where evidence was offered tending to support hut one of three charges of negligence contained in a petition, and the court in giving instructions read the petition to the jury, but in a separate instruction stated clearly the matters which the plaintiff was required to prove to make out a cause of action, and specified therein only the particular charge of negligence which was supported by evidence, and no request was made otherwise to eliminate or withdraw from the jury the other charges, it is held, that there is no prejudicial error in the instructions of which the defendant can properly complain.</p> <p>:3. Master and Servant — Notice to Master of Defect in Roof of a Mine — Liability to Injured Employee. It is not necessary that the master should have actual knowledge of the defective condition of a roof in a mine in order to be liable for a personal injury to an employee by the falling of a fragment therefrom, if in the exercise of reasonable care the defect would have been known and the resulting injury avoided.</p> <p>4. - Negligence in Testing Condition of Roof — Question of Fact. To ascertain the condition of the roof in a drift of a lead-and-zinc mine the operators of the mine adopted the use of a prod, consisting of a piece of gas pipe, to test the roof and dislodge loose pieces therefrom. Whether the instrument made use of and the method and frequency of its use satisfied the requirement of reasonable care on the part of the master to make