Sibley v. Kansas City Cotton-mills Co.

Citations

• 85 Kan. 256
• 116 P. 889
• 1911 Kan. LEXIS 53

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Instruction — When Refusal to Give Not Prejudicial Error. The refusal to give an instruction relating to one of several charges of negligence contained in a petition although correctly stating a principle of law is held not to be prejudicial in view of the instructions given which, when considered as a whole in the light of all the evidence, sufficiently, advised the jury upon the proposition contained in the one refused.</p> <p>:2. Negligence — Common Laiv and Statutory Joined — Assumption of Risk. The court did not err in submitting to the jury all the issues arising upon a petition charging negligence at common law together with negligence in violating the factory act; - and the question of assumption of risk by an employee as applied to the common-law charges of negligence was properly submitted to the jury, upon the evidence relating to that subject.</p> <p>S. Pleadings — Issues liaised by Answer and Reply Properly Submitted. In an answer to a petition charging negligence in the operation of machinery in a manufacturing establishment, causing injury to an employee, it was alleged that certain negligence charged in the petition was that of a fellow servant of the injured employee. In the reply it was alleged that the fellow servant was incompetent, as the employer well knew. Evidence was given that the fellow servant was a minor under sixteen years of age. The court instructed the jury generally that the employer was not liable to the employee for negligence of a fellow servant, but limited this general rule by stating other rules applicable where the fellow servant is under sixteen years of age and is incompetent for the service. Upon an objection that the court by this instruction submitted to the jury charges of negligence not stated in the petition and not within the issues, it is held that the instruction related to a defense and that a statement of the fellow servant rule and its limitation as applied to the evidence was