58 Kan. 544 | Kan. | 1897
The fourth instruction asked by the .plaintiff and given, is defective in that it fails to confine the jury
While the answer of the defendant does not chai’ge contributory negligence, the plaintiff's petition alleges that Mrs. Lamsdale was killed by reason of the negligence of the defendant, and without any fault or negligence on her own part; and the case was tried as though contributory negligence on her part 'was an issue in the case. Under these circumstances, we think it was incumbent on the court to correctly charge the jury with reference to the duty resting on Mrs. Lamsdale to take due precautions for her own safety, and the legal effect of her failure to do so.
Complaint is also made of the refusal of the court to instruct that any negligence on the part of the driver should be imputed to the plaintiff; but in this we find no error. City of Leavenworth v. Hatch, 57 Kan. 57; Reading Township v. Telfer, 57 id. 798.
For the errors in the instructions given, the judgment must be reversed and the cause remanded for a new trial.