The Advocate and news., 1898-09-28

oEF IEMbEh zS,
i, who may cross-examine the witness
thereon.
q Where the jury find that the railroad
company Is only negligent In allowing the
accumulation OF cOmbustible material unon
us right-of-Way the said company is not
preJudiced by the refusal OF the court IN
compel the jury to answer special 0ues-
lions relating to other items of negligence
,,c ., distinctions are to he made between
the decisions of the Supreme court unon
the questions OF negligence arising nrior
10 the passage of the law OF 1885 upon that
supJect, ana the acts Of negligence arising
subsequent to its passage
4. The plaintiffs recovery for DAMAGES
10 real estate by fire caused In the ODeTa
tion OF a railroad is limited TO the actuar
diminutlon in the value of the realty. bnt
while this may be shown either on cross
examination OF the plaintiffs witness or as
matter or defense, it does not prevent
PROOF by the plaintiff of the value of the
thing DESTROYED as a part Of the realty.
8. No objection will be considered unless
the grounds thereof are stated
Attest: VA AyPEs
LSeall CIerk
In the Kansas Court of Appeals Southern
Department, Central Division
No. 346.
Wichita & Western Railway CompaDv
plaintiff in error,
John Kennedy, defendant in error.
Error from sedgwlck County District
Court.
REVERSED.
Syllabus.
The opinion of the Court was delivered bv
Milton. I.
l. Where an instruction to the Jury was In
conformity with the PLAINTIFFS theory of the
cause OF his personal injury by the alleged
negligence Of the defendant railroad com
pany, as such theory was indicated by the
petition, by the plaintiffs statement of his
case to the jury, and by the testimony Of
fered In support of his cause OF action and
the instruction so given was not objected
or excepted to by the plaintiff, the same
became the law Of the case, binding upon
the plaintiff in the trial court and In this
court.
2. Where under the circumstances stated
In the foregoing paragraph the special
findings of fact show that the jury rejected
plaintitrs s trial theory and disregarded the
said instruction, the trial court ought to
have set aside the verdict in favor of the
plaintiff.
Attest: VA. AYREs
LSeall Clerk.
In the Kansas Court of Appeals, Southern
Department, Central Division.
No. 3S1.
Parry Manufacturing Co, a corporation,
defendant In error,
VS..
s. II. MytOn, defendant in error.
Error from Cowley County District Court
AFFIRMED.
Syllabus.
The opinion of the Court was delivered by
DenniSOn, p. j.
l. When the plaintiff in a replevin action
claims the personal property in controversy
as sole owner he must stand or fall on that
claim and cannot recover by showing his
right to lien.
g. When goods are sold and delivered to
the purchaser under the terms of a contract
which provides that the title of the goods,
or the purchase price thereof, shall remain
in the vendor until the purchase price Is
fully paid, the vendor, as between the orig
inai parties, has lien upon the goods for
the unpaid portion of the purchase price,
which lien would be removed by payment.
Attest: w. A. AYRES,
TSeal1 Clerk.
State of Kansas, IS.
l. w. A. Ayres, Clerk of the Kansas
Court Of Appeals, Southern Department,
Central Division, do hereby certify that the
above and foregoing are full, true and cor
rect copies of the syllabi of the court,
handed down at Garden City, Kansas, on
the 18th day Of September, A. d. 1898, and
filed in this office on the 2lst day Of Sep