Smith v. Bush

Citations

• 102 Kan. 150
• 169 P. 217
• 1917 Kan. LEXIS 239

Syllabus

<p>SYLLABUS BY THE COURT.'</p> <p>1. Negligence — Defective Engine — Fire Loss — Train Sheets and Railroad Records as Evidence. Although train sheets and records oí a railway company, made before the occurrence of a fire could have been'' known, which' show that no engine or train was operated at or near the ¿lace where the fire in question occurred, are entitled to great ■ weight as evidence, this court cannot weigh the effect of .them as against evidence of persons who testified that they saw an engine operating there at the time.</p> <p>2. Same — Weight of Certain Evidence — Improper Instruction. The following instruction should not have been given, in view of the character of the conflicting evidence upon the issue of fact to which it refers: “You are instructed that under the law of this state a positive statement of a witness as to an existing fact with relation to seeing or hearing a thing, which he was in a position to see or hear, is of greater value than the statement of a witness who testified that he did not see or hear a thing.”</p> <p>3. Same — Two Acts of Negligence Alleged — Findings Sufficient. The petition alleged the fire was caused by negligence in operating the engine, and also negligence in failing to provide sufficient devices to prevent sparks. In answer to a special question the jury found that the fire was caused by careless handling of the engine, or because of the deféetive condition of the smokestack. There was no evidence from which the jury could have answered differently.' Held, following Hilligoss v. Railway Co, 84 Kan. 372, 114 Pac. 383, it was not necessary, in order to support the verdict, that the jury agree among themselves as to which of the two acts of negligence occasioned the fire.</p>