Jarrett v. Apple

The opinion of the court was delivered by Horton, C. J.: It is contended that as the petition charges carelessness and negligence upon the part of plaintiff in er* [695] ror, defendant below, the court erred in instructing the jury that the plaintiff in error, defendant below, could recover under § 2, ch. 118, Comp. Laws of 1879. With the charge of carelessness and negligence eliminated from the petition, there are sufficient allegations in the petition to allow a recovery under the statute; hence the court committed no error in that regard. “A party aggrieved may seek his remedy either under the statute or under the common-law rule, and probably both at the same time, in the same action.” Section 2 of said chapter 118 is purely remedial. It does not abrogate the rule of the common law, but in certain classes of cases therein mentioned, substitutes another test of liability, in which- neither willfulness nor negligence is a necessary element. (Emerson v. Gardiner, 8 Kas. 452.) Complaint is next made of the instructions of the court. An examination of the record shows that no exceptions were taken to the instructions, or any of them, and in the motion for a new trial no error of law occurring at the trial is assigned. In this condition of the record, we cannot examine the record to ascertain whether the court committed any error in directing the jury. (City of Wyandotte v. Noble, 8 Kas. 444; Norton v. Foster, 12 id. 44; Nesbit v. Hines, 17 id. 316; Fowler v. Young, 19 id. 150.) There is sufficient evidence in the case to sustain the verdict and judgment; and a new trial will not be granted where the testimony is conflicting, or the verdict is against a mere preponderance. (K. P. Rly. Co. v. Kunkel, 17 Kas. 145; Harris v. Thompson, 23 id. 372.) The judgment of the district court will be affirmed. All the Justices concurring.