The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-06-17

ment and hence such general verdict did
not constitute material error.
3. Notwithstanding section $50 of the
civil Code causes on appeal must be de-
termined upon the record coming from the
trial court. (In re Burnette, 7:S Kan 600, SIS
144 Pac. 2o5.} n"'' - nan -7''
4. On account of an excess in the judg-
ment it is ordered modified. 1t is then
affirmed.
An the justices concurring.
Attest: d. A. VALENTINE,
lSeal.I Clerk Supreme Court
No. 2o.243.
Florence Estella Wade, Appellee,
The Empire District Electric Company,
Appellant
Appeal from Cherokee County.
AFFIRMED.
Syllabus. By the Court Porter, J.
L In an action to recover for the death
of one who was killed by coming in con
tact with heavily charged electrical wires
OF the defendant which crossed a public
highway, the petition alleged that de-
ceased. who was moving derrick along
the highway, climbed on the derrick in or
der to lift the wires, and that while so
engaged he slipped and fell upon and
caused his death. There no evidence
to show that he slipped fell: the wit
et %no stood upon or the the gFounI twenty
and was on his knees attempting to lift
another when they heard him groan and
discovered that he was unconscious. Held
the slight variance between the proof and
the allegation of the petition not
fatal, and it might have been covered by
an amendment to the petition, even after
Judgment to conform to the prof.
. The law as declared when the case
81 Kan. 46a, al Pac. So is held to be the
law of the case upon the second trial, the
facts being substantially the same, and it
is held, therefore, that the deceased was
not as matter of law guilty Of con-
tributory negligence.
g. Where jury by their special find,
the uncontradicted testimony of witnesses
the trial court may. either set aside the
mining whether the verdict is the result of
such prejudice or passion as to warrant a
new trial. but where the verdict has been
approved BY the trial court, it will be
suIDed that the court diu not regard the
conduct of the jury as evidence of such
passion or prejudice as would warrant
new trial.
4. The testimony of expert witnesses
that 1T is not good practice to insulate
eie efh wires Snrry1ng over 2m volts rs
feet high, where it is conceded that the
wires were insulated when first placed in
position but the insulation had worn off,
is not conclusive evidence of the fact. Ex-
pert witnesses determine nothing They
testify to their opinion as to facts and con-
ditions. The jury determine what are
the facts.
). An instruction which in substance
charged chat If under certain conditions
stated defendant should reasonably have
| anticipated that persons using a public
highway might come in contact with it's
electric wires, and it failed to use the
highest degree of care to insulate the
same, it was negligent, is held not to i'm
pose too high a duty upon the defendant,
when considered with other instructions
which charged that it was the duty of the
defendant to keep its wires insulated, -or
if not insulated, to keep them in a position
and location out of reach of all the com
mon and ordinary traffic and travel
g. Other instructions considered and
held not to be objectionable on the ground
that they assume the existence of contro-
verified facts.
4 A requested instruction that deceased
was a 'trespasser or at least mere licensee
of defendant when he undertook to move
the wires and enable the derrick to pass
under them, rightfully refused.
s. Other instructions requested by the
defendant considered and held properly
refused.
O. The fact that deceased could have
moved the derrick under the wire by low
! ering and hauling the derrick in a horizon
tai position was a fact for the jury to con-
slider in determining whether under all the
circumstances he was guilty of contribu-
tory negligence; but a special finding that
he could have escaped injury by adopting
the safe way did not authorize the court
to render Judgment on the finding in
favor of defendant on the ground that
as matter of law the deceased was
guilty of contributory negligence.
Johnston, c. J., Burch, j., Mason, J.,
and West. J., concurring.
Porter, J. and Dawson, J., dissenting
Marshall, J., not sitting.
| true copy.
| Attest: n. A VALENTINE.
ISeaL1 Clerk of Supreme Court.
No 2O,371
Gus Norris, Appellant
!
Ross Township. Appellee.
Appeal from Cherokee County.
/ AEETfMED