Norman v. Atchison, Topeka & Santa Fe Railway Co.

Citations

• 101 Kan. 678
• 168 P. 830
• 1917 Kan. LEXIS 175

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Allegations Stricken Out — Intermediate Order — Time in Which to Appeal. Where certain allegations in a petition, stricken out on the order of the trial court, involve the merits of a cause of action or some part of it, the order to strike out is an intermediate appealable order, and an appeal must be taken thereon within six months; otherwise the supreme court has no jurisdiction to consider it.</p> <p>2. Death op Employee — Negligence of Defendant Not Shown — Demurrer. Where liability for the death of an employee is sought to be established by probabilities alone, and there is an absolute want of any legal evidence tracing the death of the employee to the negligence of his employer, a demurrer to the evidence is properly sustained.</p> <p>3. Same. Defendant’s freight-train conductor was killed by the explosion of torpedoes set upon a railroad track by some unknown person. The evidence showed that the torpedoes were the same kind as those kept by the defendant in its locked storeroom not far away. The window of the storeroom was not always securely fastened. The key to the storeroom was accessible to the defendant’s employees. Upon the establishment of these bare facts the plaintiff rested her cause, it being plaintiff’s theory that it was sufficient for her-to- show that the torpedoes were thus negligently kept where some thief may ' have stolen them and set them on the track where by explosion they killed the employee. Held, that a demurrer to the evidence was properly sustained.</p>