Wyrick v. Parsons Railway & Light Co.

Citations

• 100 Kan. 122
• 163 P. 1059
• 1917 Kan. LEXIS 277

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Injuries to Child — Negligence of Motorman — Evidence— Findings. The plaintiff, a child about twenty months old, who was traveling diagonally across the intersection of two streets on one of which a street railroad was operated, was struck and injured by a street car. In the action to recover damages for the injury the principal controversy was whether the motorman could or should have seen the child and its peril in time to have stopped the car and avoided the injury, and it is held that the evidence sustained the finding and verdict to the effect that the motorman failed to exercise reasonable care for the protection of the child.</p> <p>2. Same — Court May Instruct Upon Any Issue Properly Raised Which the Evidence Tends to Support. It is competent for a court to give, instructions upon any issue or theory of a party which is within the pleadings and which the evidence fairly tends to support, although the evidence may not be direct or strong and might be deemed to be inadequate by the court if it had been the trier of the fact, and it is herein held that there was evidence in this case to justify the court in giving an instruction upon the theory of the plaintiff herein, the question of whether the theory was proven being left to the determination of the jury.</p> <p>3. Same — When the Setting Aside of a Special Finding Requires a Reversal. If a verdict rests in part upon a special finding which is set aside for lack of support in the evidence a new trial should be granted, but if the finding set aside is not essential to the support of the verdict, and the remaining findings and the evidence sustain the verdict, the setting aside of the findings does not require the setting aside of the verdict nor the granting of a new trial.</p> <p>4. Same — Finding Supported by Evidence. Another special finding as to the negligence of the motorman is challenged on the ground of a lack of evidence, but. it is held to have suffic