Ferd. Heim Brewing Co. v. Gimber

Per Curiam: This was an action brought by Henry Gimber, a boy thirteen years of age, against the Ferd. Heim Brewing Company to recover for injuries received while crossing a street by being run over by a teám driven by a servant of the company. The petition alleged negligence in fast driving. The defense was principally based upon a claim of contributory negligence. Plaintiff in error contends that the trial court should .have sustained a demurrer to plaintiff’s evidence and that an erroneous instruction was given relative to the degree of care required of plaintiff. We think that there was sufficient evidence of negligence on the part of defendant to require the submission of the issue to the jury, and that the question whether plaintiff was guilty of contributory negligence was likewise a matter for their determination. Under the circumstances of the case, we do not find that the instruction complained of, considered as a whole, was erroneous, It is argued by plaintiff in error that as the injury occurred in Missouri the instructions should have conformed to the law as declared by the supreme court pf Missouri, rather than by that of Kansas. Conceding the correctness of this contention, it was necessary for the defendant, in order to derive any advantage from it, to produce evidence that the rule of law invoked in fact existed in Missouri. The rule is the same in the case of a judicial decision of a sister state as in that of a statute. Neither is judicially noticed except for- the purpose of construing our own laws or determining what they are. (Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kan. 462.) No evidénce having been introduced on this proposition, the question sought to be raised is not before us. The judgment is affirmed.