Hyland v. Atchison, Topeka & Santa Fe & Railway Co.

The opinion of the court was delivered by 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 Pac. 531; Madden v. Stegman, 88 Kan. 29, 30, 127 Pac. 524; Green v. Fist, 89 Kan. 536, 540, 132 Pac. 179; Smith v. Schriver, 91 Kan. 582, 585, 138 Pac. 584; Machine Co. v. Roach, 91 Kan. 840, 842, 139 Pac. 430; Terry v. Gravel Co., 93 Kan. 125, 129, 143 Pac. 485.) The judgment is reversed with directions to grant a new trial.