Truman v. Kansas City, Mexico & Orient Railroad

Citations

• 98 Kan. 761
• 161 P. 587
• 1916 Kan. LEXIS 189

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Factory Act — Two Acts of Negligence Alleged — Only One Proven— No Material Variance — No Prejudicial Error. Where a cause of action sufficiently pleads and the evidence sufficiently proves such negligence as will render a defendant liable thereon it is not a material variance that the same cause of action also alleged other acts of negligence which were not established by the proof, when the superfluous allegations not proved could not have misled the defendant to his prejudice. (Civ. Code, § 134.)</p> <p>2. Same — Railroad Repair Shop — When Governed by Factory Act. In the conduct of its car-repair shop, a railroad company which has elected not to come under the provisions of the workmen’s compensation act (Laws 1911, ch. 218; Laws 1913, ch. 216), is governed by the factory act (Laws 1903, ch. 356, Gen. Stat. '1909, §§ 4676-4683), and its liability for injuries sustained by its workmen in such car-repair shop is controlled by the latter act, and not by the common 'carriers’ liability act (Laws 1911, ch. 239), following Bubb, Adm’xj v. Railway Co., 89 Kan. 303, 131 Pac. 575.</p> <p>3. Factory Act — Unguarded Circular Saio — Injuries to Workman — Certain Evidence Properly Rejected. Where a workman in a car-repair shop sustained injuries to his hand which came in contact with an unguarded circular saw it was not error to exclude evidence that the sawing machine had been examined and found without fault by the state factory inspector; nor was it material error to exclude testimony that other saws were similarly operated in the community without safeguards.</p> <p>4. Same — Finding of Jury — Conclusive. Ordinarily a jury’s finding that it is practical to attach a safeguard to a piece of dangerous machinery, when such finding is approved by the trial court, is conclusive.</p> <p>5. Same — Unguarded Machinery — Burden of Proof — Proper Instruction. The court’s instructions to the jury that the plaintiff was not required to prove that i