Chicago, Rock Island & Pacific Railway Co. v. Mosher

Citations

• 76 Kan. 599
• 92 P. 554
• 1907 Kan. LEXIS 300

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Expert Testimony — Effect of Fire on Trees. In an action to recover damages for the injury and destruction of trees and hedges by fire, alleged to have been negligently started in the operation of a railroad, a witness who has had experience with trees and hedges and has observed the effect of fire upon them, and is shown to be qualified, may testify as an expert and give his opinion as to the effect of fire upon trees and hedges.</p> <p>2. -Damages — Value of Trees as a Part of the Land. In showing the extent of the loss caused by the burning of growing trees and hedges testimony of the value of such trees and hedges, as a part of the land is admissible.</p> <p>3. Practice, District Court — Application for a New Trial— Newly Discovered Evidence. Where an application is made for a new trial after the term at which the verdict and judgment were rendered, under section 310 of the civil code (Gen. Stat. 1901, § 4758), the court, in deciding upon the application, may consider not only the newly discovered evidence produced but also the evidence pertinent to the subject which was introduced on the original trial before the jury.</p> <p>4. Practice, Supreme Court — Review of Ruling Denying a New Trial — Record. To secure a review in the supreme court of the ruling refusing a new trial'there should be incorporated in the record all of the evidence upon which the trial court acted, including that given upon the question in the original trial.</p> <p>5. -Record in Original Case Not Available. In a proceeding in error to review such ruling the supreme court cannot examine or consider the evidence or other matters in an earlier proceeding in error, although such prior proceeding had been brought to review the judgment rendered in the original case.</p>