Coffeyville Shale Brick Co. v. Silvers

100 P. 1134, 79 Kan. 694, 1909 Kan. LEXIS 268

Opinion

Per Curiam:

Plaintiff, who was asking for damages from the brick company for personal injuries sustained because of its negligence, produced testimony showing that on the day of the injury he was called from the post of “off-bearer” to run the “cut off” machine; that a belt became entangled on an upper shaft, and to remedy it plaintiff ascended a ladder used in part for that purpose, which was defectively constructed and weak and which gave way under him, causing him to lose his balance and involuntarily throw his hand in contact with the machinery, whereby it was permanently injured. The court sustained a demurrer to plaintiff’s evidence, but later granted a motion for a new trial, in which seven grounds were assigned, but the court did not specify the ground upon which the new trial was granted.

There was certainly sufficient evidence to take the case to the jury, and from plaintiff’s testimony it can not be said as a matter of law that he was guilty of contributory negligence. There is much discretion in the court in granting a new trial. It may be done when in the opinion of the trial court a party has not had substantial justice. (City of Sedan v. Church, 29 Kan. 190.) This court is slow to set aside such a ruling, and in the present case there appears tp have been a good reason for the order made.

The judgment is affirmed.