Missouri, Kansas & Texas Railway Co. v. Green

Citations

• 75 Kan. 504
• 89 P. 1042
• 1907 Kan. LEXIS 91

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Allegations and Proof of Negligence of a Mastei — Variance—Failure of Proof. A petition in a personal-injury case charged negligence in the selection of an insufficient wooden block and a negligent adjustment of such block to render effective the work of a hydraulic ram in lifting a railway engine which was being repaired by a group of four or five skilled mechanics under the direction of a foreman. It was alleged that the foreman selected the block and handed it to the man who adjusted it. There was some evidence on the trial that another than the foreman selected’ the block and handed it to the man who adjusted it. From all the evidence the jury found that the man who adjusted the block selected it. Held, there was no material variance between the • pleading and the proof, and no failure of proof because the foreman did not select the block.</p> <p>2. Variance — When and How the Question Must be Raised. The question of a variance between a pleading and the proof offered to sustain it must be raised at a time and in a manner which will permit an amendment of the pleading upon such terms as may be just; and the adverse' party must not only be misled to his prejudice, but that fact must be proved to the satisfaction of the trial court, and it must be shown in what respect he' has been misled.</p> <p>3. Railroads — Injury to Employee — Negligence of Fellow-servant — -Statutory Liability of the Master. The plaintiff, a skilled employee of the defendant railway company, was engaged in the repair of an engine in active use in the operation of the road, under the circumstances related in paragraph 1 of this syllabus, and was familiar with all the details of such work. The defendant provided a safe place to work, competent and habitually careful workmen, safe machinery and appliances to work with and sound and sufficient wooden blocks to choose from. The plaintiff had nothing to do with the selection or adjustment of