The Leavenworth weekly times., 1879-05-15
By THE COURT.
' ALENTISE, j.

By THE COURT. VALENTINE, j..
1. Several matters discussed, and held that
no material error with reference thereto was
committed as against the plaintiff in error.
2. In an action founded upon the alleged
negligence OF the defendant, Held, That. in
the absence of evidence tending to show
either that the plaintiff was or was not neg
ligent, the court should direct and the jury
should find that the plaintiff was not negli-
gent.
B. In all cases where the question of negli-
gence Is in issue, II is the province of the
Court to determine whether the evidence
offered or introduced tends To prove or dis
prove the negligence. And IL no evidence IS
offered or introduced tending To prove the
negligence the Court may itself decide that
NO negligence Is proved, and direct the jury
to find accordingly. And where evidence Is
introduced proving negligence beyond all
controversy and no countervailing evidence
Is introduced, the Court may generally say
that the negligence is proved. But in all
cases where evidence IS offered tending TO
prove the negligence, the evidence must he
admitted. And in all cases where such evil
dence is introduced, and the adverse party
then seeks to rebut the same by Introducing
cOuntervailing evidence, such countervall-
ing evidence must be admitted. And when
sll the evidence offered is introduced, then,
unless there is no evidence introduced to
prove negligence, or unless the evidence in
troduced is all one way proves the negligence
be yO1d all controversy the question wheth-
er negligence is proved or not is a question of
fact for the jury and not a question OF law for
the court. In all cases where the facts con-
stituting or tending to prove or dlsprOve the
negligence are disputed, the question wheth-
er such supposed negligence has any exls-
tence or not Is one of fact for the jury. And
even where there is no dispute about the
facts in their details, still, If they are stated
or proved in such limitless, cumbrous or
diffusive detail that different minds of
reasonable capacity might honestly differ
with respect 10 whether they in fact consti-
tute or prove negligence or not, the question
as to whether they do in fact constitute or
prove negligence or not, must be submitted
to the jury as question OF fact. The Infer
ences 10 be drawn from such numerous and
cumbrous details, are differences of fact and
not inieIences OF law.
4. Where the action is founded upon the
alleged negligence of the deienuant,and some
OF the evidence introduced on the trial tends
To show that the plaintiff was guilty of con-
tributory negligence, and the defendant in
accordance with section 2s6 of the code,-laws
of1S7I, pages lI0, lIl,-Iequests the court TO
direct the jury To lind upon the particu ar
was guilty of contributory negligence, and
the court refuses; Held error.
Brewer, j., concurring.
Horton, C. j, not sitting in the case.
A true copy. Attest: a HAMMATT,
IL. 81 Clerk Supreme Court.
No. /, 62l.-The State of Kansas, et Tei., AttOr-
ney General, VS. John 4. st John, Govern
er of the State of ofkansas.-Drigin / proceed-
tngs in mandamus. Judgment Tor The
Plaintiff.
BY THE COURT. HORTON, c. j
1. Under section article Q, of the State
constitution, no county, whether organized
or unoTganiZed. eau have its lines changed
by the legislature so as to include an area of
less than four hundred and thirty-two
square miles.
9. The attempt by the Legislature, under
an act entitled IAN act defining the bOun-
daries of Barton and Pratt countless" ap.
proved March }, 1873, to reduce the area of
SfQffDr6 hundred
ninety.two square miles to seventy-twO
square miles and divide the detached terri
ritory between Barton and Pratt counties is
void, because in conflict with section l, Ar
tce 3 of the state constitution.
All the justices cOncurTing.
A true copy. Attest:
\. HAMMATT.
IL. G.. Clerk Supreme Court.
No. /, ,G3o-Ex parte George NJ. HOIcomb-Orig.
inal proceedings in habeas coTpus-Petl-
ton TOR discharge denied.
BY THE COURT. BREWER, ].
l. The act att aching terr tory on the west
ern frontier not as yet divided into counties
to an adjoining judicial district or county of
such district for Judicial purposes, is within
the general powers granted To the Legisla-
ture and not in conflict with any constitu-
tionsl provision.
?. The guarantee in section 10, of the bill of
rights to an accused of a trial by jury of the
county or district in which the otiense Is
charged TO have been committed, must be
construed as qualified by the power of attach
ing counties or undivided territory to judi
cial district, and such attached counties or
territory must bs held to be part of the
district within the scope of said section 10.
3. Section 6, of chapter 20, OF the laws OF
1873, is not rendered invalid 10y the consti-
tutionaI provision in section l6, article 2,
that mo bill shall contain more than one
subject, which shall be clearly expressed in
its title"
4. Nor is said section unconstitutional OF
invalid because at the time of its passage the
existing organization of Ford county was
fraudulent and illegal, such existing organi-
zation having been by subsequent act of the
Legislature made valid and legal.
All the justices concurring.
A true copy. Attest. \. HAMMATT,
fL-sl Clerk Supreme Court.