The Advocate and news., 1898-01-05

PiaihIAS ia SAAOAt
w. II. Brown & Co. and VIM. II. Lewis,
defendants in error.
Error from Lyon County.
REVERSED.
The opinion Of the court was delivered by
Milton, j.
Where an answer and the evidence in
support thereof failed to make out any de-
fense, the judgment of the trial court,
which was manifestly controlled thereby,
will be reversed, Notwithstanding no OBJ
lection to such answer and evidence was
made by plaintiffs in the trial Of the action.
Attest: w. A. AYREs,
lSeall Clerk.
Kansas Court Of Appeals, Southern De-
partment, Central Division.
No. 236.
st. Louis & San Francisco Railway Com
pany, plaintiff in error,
c. N. Knowles, defendant in error.
' Error from Cowley District Court,
AFFIRMED.
The opinion Of the court was delivered by
SchoonOver, ].
where the defendant in a case which Is
heing tried by jury, files a demurrer to
the plaintiffs evidence, on the ground that
the evidence does not prove any cause or
action: Held, that unless the plaintim has
utterly failed by all his evidence to prove
his case, or some material fact In issue In
the case, the demurrer should be over
ruled" Brown VS. A., L. & s. f. Ry. Co.,
81 Kas., page 1)
account Of the admission Of incompetent or
immateral evidence, not prejudicial to
the party complaining" Moore vs. Helfer,
2j Kas. 1881
8. The degree Of care to be exercised by
one approaching q railroad crossing must
depend upon the obstruction, locations, sur
Ioundng5 and existing circumstances Of
each particular case, and under proper in
structions, is ordinarily question Of fact
for the determination Of the jury
4. "In order that the court may declare
that Ii was negligence, as matter OF law,
for him to fail to stop, there must be an
evident necessity under the circumstances
that he should stop, and this must be made
so certain that the minds OF reasonable
men would not differ in regard to It," 6G
Kas. 1927
Attest: w. A. AYRES,
[SeaL1 Clerk.
Kansas Court of Appeals, Southern De-
partment, Central Division.
No. 219
B. A. Burr and Keller J. Bates, plaintiffs
in error,
VS..
Albert Honeywell, a person of unsound
mind, by his guardian, o. c. Hooker, de-
fendant in error.
Error from Harper County District Court.
AFFIRMED.
The opinion of the court was delivered by
SchoonoVer, j.
/. The trial of an issue OF fact and the
assessment of damages in any case, shall
he in the order In which they are placed on
the trial docket unless the court, in its
discretion, shall otherwise direct.
2. All the presumptions are in favor Of
the regularity Of the proceedings OF the
trial court, and where the showing in sup
port Of motion to advance case on the
docket is not contained in the record, 1t
will be presumed that reasons satisfactory
to the court existed and were presented.
g. The striking of the demurrer OF de-
fendant Bates from the files in this case
Held, not to be an abuse Of discretion upon
the part Of the trial court.
L. Gas the record does not purpOrt to
contain all OF the instructions given by the
court, or all that were given upon any par
ticular branch Of the case, the objections
attempted to be raised thereon cannot be
sustained" Davis v. Mccarthy, So Kas.
116.)
init questions of fact drawn in proper FORM
material to the case, and based upon the
evidence" "a, T. & s. F. Ry. Co. v. Ayres,
Sc Kas. 1907, but where the questions are
frivolous, immaterial, repetitions and to
run to the minor and subdivided facts into
which the principal fact may be resolved
and cannot be fully and fairly answered
without confusing the jury, 1t is the duty