Atchison, Topeka & Santa Fe Ry. Co. v. Perryman

I cannot concur in the opinion of the majority.

*273Under the original petition, upon which the cause was tried until the close of the evidence, the alleged basis for liability of the defendant railroad company was not negligence of the company but that of a fellow-servant for whose negligence the company becomes liable solely by reason of a provision of the Constitution (Const. Art. IX, sec. 36). Under the amendment to the petition which, over objection, was permitted to be filed after the close of the evidence, the alleged basis of liability of the company is that of the negligence of such…