Hernandez v. Bachand ( 1967 )

O’Connor, J.,

concurring specially: I respectfully disagree with my brethren of the majority that plaintiff’s testimony precludes his recovery as a matter of law under the doctrine of assumption of risk. In my opinion, the evidence was such that plaintiff was entitled to have the question submitted to the jury. (Harvey v. Palmer, 179 Kan. 472, 296 P. 2d 1053.) I agree, however, that the judgment be reversed, but the case should be remanded for a new trial, because the general verdict is not supported by the jury’s purported answers to special questions, the members of the jury being unable to agree unanimously on said answers.

Fatzer, J., joins in the foregoing specially concurring opinion.