Brower v. Western Union Telegraph Co.

Citations

• 81 Kan. 109
• 105 P. 497
• 1909 Kan. LEXIS 314

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Opinion — Facts upon which a Conclusion is Based Stated. On the trial of a case involving the care of cattle during a delay in the shipment thereof it is not reversible error, after a witness has detailed all that was done and the difficulties which he claims prevented doing more, for the court to refuse to. strike out an expression to the effect that he did the best he could under the circumstances. Nor in such case is it material error to permit a witness to testify that “we shipped the cattle as soon as we could,” after relating the circumstances that he claimed delayed the shipment.</p> <p>2. Instructions — Contributory Negligence — Inference —■ Evidence. An instruction which implies that a certain fact would constitute contributory negligence and diminish the damages claimed should be refused unless there is some evidence fully to sustain such assumption or implication.</p> <p>3. Special Findings — Consistency—Waiver. After a jury has returned a general verdict and special findings of fact, and the jury is discharged without any motion for more specific answers to the questions submitted, a motion for a new trial on the ground that certain findings are irreconcilable should be denied if the findings can fairly be reconciled under the evidence produced or by assuming the negative of a fact or facts the burden of proving which devolved upon the moving party, where he has failed' to produce any evidence thereof.</p>