Hutton v. Link Oil Co.

Citations

• 108 Kan. 197
• 194 P. 925
• 1921 Kan. LEXIS 10

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Petition Consisting of Two Counts — One Under Workman’s Compensation Act — One for. Damages Resulting from Negligence — No Misjoinder — No Election Required. A petition consisted of two counts, one stating facts which, if established, would entitle plaintiff to recover under the workmen’s compensation law; the other stated a cause of action for damages for injuries which it was alleged resulted from defendant’s negligence. Held, there was no misjoinder, and further, that plaintiff could not be required to' elect between the two causes of action.</p> <p>2. Negligence — Insecurely Fastened Derrick — Proximate Cause of Accident to Plaintiff. The foreman and another employee of the defendant were engaged in removing casing from a well, using a derrick made of iron piping. There were -three guy wires on the derrick but only two of them were fastened. As each length of casing was drawn it was loaded on a wagon to which there was hitched a team of horses. In attempting to pull one of the joints of casing, the strain caused the derrick to topple over and it fell across the back of one of the horses knocking the animal down. The other horse was hitched to the derrick to pull it off the one that was down, and as this was being done, C. Y. Hutton, a bystander, at the request of the foreman assisted the latter to roll the pipe from .the fallen horse. The hitched horse started with a jerk and plaintiff was caught in the wreckage and his leg was broken. Held, that these facts warranted a finding that the negligence of the defendant in failing to have the third guy rope fastened was the proximate cause of the accident by which plaintiff was injured.</p> <p>3. Same — Instructions Not Prejudicial. Certain language in an instruction considered and held not prejudicial in view of other instructions given.</p>