Koepp v. Consolidated Electric Light & Power Co.

75 P. 1133, 68 Kan. 829, 1904 Kan. LEXIS 199

• Court: Supreme Court of Kansas
• Decided: March 12, 1904
• Docket: No. 13,534
• Status: Published

Opinion

Per Ouriam:

This case was once decided adversely to plaintiff in error. (64 Kan. 735, 68 Pac. 608.) A judgment in his favor was reversed and a new trial granted, for the reason that the negligence alleged and proved was not the proximate cause of the injury. After the case was remanded, plaintiff below filed a third amended petition, His counsel says in his brief:

“The third amended petition of the plaintiff merely enlarged the cause of action already stated in the second amended petition by inserting other allegations material to the case. . . . The cause of action in both petitions is the same.”

Counsel further states that the third amended petition “is a new version of an old story.” A general demurrer was sustained to this pleading, of which plaintiff below complains.

The proceeding in error impresses us as an attempt to obtain a rehearing in the original case. Counsel for plaintiff in error says:

“The third amended petition, like the second, merely charged common negligence, and the negligence in both cases was charged to be the crossing of its uninsulated electric-light wires with uninsulated telephone wires of Radford.”

The judgment of the court below will be affirmed.