Greco v. Western States Portland Cement Co. , 84 Kan. 110 ( 1911 )

The opinion of the court was delivered by

Porter, J.:

The main contention is that the negligence of which the jury found the defendant guilty is not alleged in the petition nor within the issues defined by the court in its instructions to the jury; and it is claimed that the court should have set aside the general verdict and rendered a judgment in favor of defendant on the findings, or at least should have granted a new trial.

There is force in the claim that the particular negligence found by the jury is not included in the three claims of negligence specified by the court in that portion of the instructions first quoted, supra. The first claim of negligence the court properly took from the jury because there was no evidence showing that the cover was out of repair or that it was worn or rotten. By their findings the jury eliminated the second specification — that the defendant had negligently failed to place a railing around the conveyor; and it may be said that the evidence would not have warranted a finding that the defendant was negligent in this respect. Nor is the negligence found by the jury in-eluded within the third specification — that the defendant failed to inspect the cover and keep it in repair and free from defects. The evidence showed that it was not out of repair, that the boards were sound, and if there had been an inspection for possible defects it would not have prevented the cover from being out of place.

The law is well settled that in actions of this kind the plaintiff must recover upon grounds of negligence alleged in his petition. (Brown v. Railway Company, 59 Kan. 70; Newby v. Myers, 44 Kan. 477; Telle v. Rapid Transit Rly. Co., 50 Kan. 455; S. K. Rly. Co. v. Griffith, 54 Kan. 428.) The principal claim of plaintiff at the trial was that the cover was worn and rotten and gave way when he stepped upon it; and while the petition did allege the failure to provide hooks or catches to keep the cover in place, so little attention was paid to this claim on the trial that the court overlooked it in the brief summary of the negligence which the jury should consider, and counsel for the plaintiff did not regard its omission of sufficient importance to challenge the court’s attention thereto. If the issue had been submitted and the jury had found that the cover slipped when the plaintiff stepped upon it, and that the negligence which was the proximate cause of the injury consisted in the failure to provide some appliance to keep the cover in. place, the judgment ought to be affirmed. It is argued that the general finding in the plaintiff’s favor and the special findings that the cover was not in place and had not been removed by some of the fellow servants of the plaintiff while he was at work should be so construed, but this requires a more liberal construction of the special findings than we feel warranted in making, in view of the pleadings and instructions. It requires us to lose sight of the particular claim of negligence which defendant was called upon to meet. It is not alleged in the petition that the cover was out of place or that it slipped from its place when the plaintiff stepped upon it.

We think the case was improperly tried, and. the judgment is therefore reversed and a new trial ordered.