Schwarzschild & Sulzberger Co. v. Weeks

72 P. 274, 66 Kan. 800, 1903 Kan. LEXIS 185

Opinion

Per Curiam:

In this case defendant in error sued to recover damages for personal injuries occasioned by the operation of a friction hoist used in raising and lowering beeves in a packing-house. The only allegation of negligence was that the person who operated the hoist at the time of the injury was unskilled and inexperienced, and by reason of such unskilfulness and inexperience the hoist was so manipulated as to drop a beef upon the defendant in error and injure him. For the purpose of attributing the conduct of the inexperienced man who caused the injury to the plaintiff, it was alleged that the superintendent and foreman of the plaintiff in error had permitted such inexperienced man to operate the hoist, and had permitted other unskilled and inexperienced men to operate it, all of which was hazardous and dangerous- to the lives of the workmen in the vicinity of the hoist.

The petition contained, no allegation whatever that the place in which the hoist was located, and in which defendant in error worked, was unsafe, and contained no allegation whatever that the defendant in error was exposed to any latent or hidden dangers which were uncovered or which overtook him to his injury. The court, however, instructed the jury upon both of these propositions, and thereby authorized a recovery on account of negligence in respect to them. This was error, since it is elementary law in this state that the specific negligence complained of must be alleged in the petition, and that recovery must be had upon such allegations and not upon extraneous matters that may be developed upon the trial.

Eor this reason the judgment of the district court is reversed, with direction to grant a new trial.