Hyland v. The Atchison

• Decision Date: 09 October 1915
• Docket Number: 19,680
• Citation: 96 Kan. 432,151 P. 1107
• Court: Kansas Supreme Court
• Parties: JOHN M. HYLAND, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY and THE CITY OF BALDWIN, Appellees

151 P. 1107

96 Kan. 432

JOHN M. HYLAND, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY and THE CITY OF BALDWIN, Appellees

No. 19,680

Supreme Court of Kansas

October 9, 1915

Decided, July, 1915.

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

TRIAL--Conflicting Evidence--Demurrer Should be Overruled. On a demurrer to evidence the trial court can not weigh the conflicting evidence of different witnesses or even material discrepancies between the testimony of a party in chief and on cross-examination, such matters being for the jury.

John J. Riling, and Edward T. Riling, both of Lawrence, for the appellant.

William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka, for the appellees.

OPINION

WEST, J.:

In this action for damages the court sustained a demurrer to the plaintiff's evidence and rendered judgment for the defendants, from which judgment this appeal is taken.

The abstract contains testimony in support of the allegations of the petition as well as evidence tending to sustain the defendants' claim of contributory negligence, but under the familiar rule conflicting evidence can not be weighed on a demurrer; even material conflict between the testimony of a party in chief and on cross-examination must be left for the jury to settle. (Acker v. Norman, 72 Kan. 586, 84 P. 531; Madden v. Stegman, 88 Kan. 29, 30, 127 P. 524; Green v. Fist, 89 Kan. 536, 540, 132 P. 179; Smith v. Schriver, 91 Kan. 582, 585, 138 P. 584; Machine Co. v. Roach, 91 Kan. 840, 842, 139 P. 430; Terry v. Gravel Co., 93 Kan. 125, 129, 143 P. 485.)

The judgment is reversed with directions to grant a new trial.