Sellers v. Reice Construction Co. , 125 Kan. 116 ( 1928 )

The opinion of the court was delivered by

Burch, J.:

A petition for rehearing contains the following, which illustrates the method employed in presenting the grounds for rehearing:

“In the case at bar there was some occasion to move the car, connected with the master’s business, because it was one of the two obstructions in the highway. In the case at bar the foreman told the deceased to move it. It doesn’t matter how much he objected to giving the order, he gave up and acquiesced in the wisdom of the suggestion made to him, and did give the order.”

The record discloses- that removal of the foreman’s car bore no relation whatever to the construction company’s business. If the car obstructed the highway, it was not the construction company’s affair, incidentally or otherwise.

The foreman did not tell the deceased to move the car, and gave no order to the deceased to move the car. The record on this subject is conclusive. Two men, and only two, knew what passed between the foreman and the workman just before the car was moved. These two were the foreman and the workman, and the workman was killed in moving the car. The foreman testified definitely and positively that he did not at any time order the workman to move the car. Besides that, the foreman testified to what did occur, 'and the facts furnished no foundation whatever for an inference of anything resembling an order by the foreman directing the workman to move the car.

The foregoing distinguishes this case from the case of McDonnell v. Swift & Co., 124 Kan. 327, 259 Pac. 695, in which the question, as stated in the modified opinion, was whether the workman was directed by his foreman to go to a particular place on a-specific errand..

This court is bound by the record. The original opinion was based on the record, and correctly disposed of the case.

The pe'tition for a rehearing is denied.