Broadway Manufacturing Co. v. Leavenworth Terminal Railway & Bridge Co.

Citations

• 81 Kan. 616
• 106 P. 1034
• 1910 Kan. LEXIS 406

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurors — Qualifications—Resident Taxpayers — Action against a City. Where there is no difficulty in procuring jurors whose impartiality is unquestioned, it is material error to retain upon the trial panel resident taxpayers of a city against whom a judgment is sought, and the fact that other corporations, whose liability depends upon the same state of facts, are joined as defendants does not change the rule,</p> <p>2. Watercourses — Obstruction by a Bridge — Extraordinary Freshet. An instruction that the builder of a bridge over a stream is required to leave openings for the passage of all the water reasonably to be expected to flow therein gives the proper measure of his duty. To add thereto a statement that no liability can attach for the results of an unusual rain or an extraordinary freshet, without further explanation, tends to mislead the jury.</p> <p>3. - Duty of Builder of Bridge to Anticipate Overflow. The duty of the builder of a bridge over a watercourse to avoid obstructing it does not end with making provision for the escape of so much water as can be carried within the channel; if there is reason to anticipate that the stream will at times overflow its banks he must also, if practicable, provide an outlet for the flood water.</p> <p>4. Practice, Supreme Court — Materiality of Errors — Code of 1909 Construed. The provision of the new code (Laws 1909, ch. 182, § 581) that reversals shall not be ordered for errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, when it appears that substantial justice has been done, does not authorize the affirmance of a judgment upon the ground that it is in accordance with the view of the facts which the reviewing court itself might derive from the conflicting evidence, where it is based on a verdict rendered under the apparent influence of a materially erroneous instruction or by a jury made up in part of persons disqu