Greco v. Western States Portland Cement Co.

Citations

• 84 Kan. 110
• 113 P. 410
• 1911 Kan. LEXIS 289

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Estoppel—Negligence. In an action founded upon negligence the plaintiff must recover upon some act of negligence alleged in the petition and submitted under proper instructions to the jury.</p> <p>2. Verdict and Findings — Consistency—New Trial. In such an action, where the cour.t instructs the jury that they may consider only certain acts of negligence claimed, and the jury return a verdict in favor of the plaintiff and a special finding that the negligence which was the proximate cause of the injury was something not alleged in the petition nor included within the claims of negligence to which the instructions restricted the jury, the general verdict will not be permitted to stand, and the judgment will be set aside and a new trial ordered.</p>