Wade v. Empire District Electric Co.

Citations

• 98 Kan. 366
• 158 P. 28
• 1916 Kan. LEXIS 89

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Electric Wires — Crossing Public Highway — Moving Derrick — Contact with Wire — No Variance Between Allegations and Proof. In an action to recover for the death of one who was killed by coming in contact with heavily charged electrical wires of the defendant which crossed a public highway, the petition alleged that deceased, who was moving a derrick along the highway, climbed on the derrick in order to life the wires, and that while so engaged he slipped and fell upon and thus came in contact with the wire which caused his death. There was no evidence to show that he slipped or fell; the witnesses, who stood upon the ground twenty feet below, thought he had lifted one wire and was on his knees attempting to lift another when they heard him groan and discovered that he was unconscious. Held, the slight variance between the proof and the allegation of the petition was not fatal, and it might have been covered by an amendment to the petition, even after judgment, to conform to the proof.</p> <p>2. Same — Law of Case Determined, on Former Appeal. The law as declared when the case was here before (Wade v. Electric Co., 94 Kan. 462,147 Pac. 63) is held to be the law of the case upon the second trial, the facts being substantially the same, and it is held, therefore, that the deceased was not as a matter of law guilty of contributory negligence.</p> <p>3. Same — Special Findings — Do Not Show Passion and Prejudice of Jury. Where a jury by their special findings indicate that they have discredited the uncontradicted testimony of witnesses, the trial court may either set aside the finding or may consider the fact in determining whether the verdict is the result of such prejudice or passion as to warrant a new trial, but where the verdict has been approved by the trial court, it will be assumed that the court did not regard the conduct of the jury as evidence of such passion or prejudice as would warrant a new trial.</p> <p>4. Same — Eviden