91 Kan. 37 | Kan. | 1913
The opinion of the court was delivered by
The defendants appeal from an order granting a new trial. The action was for damages alleged to have been sustained by the plaintiff in an assault committed by one of the defendants while in the act of serving a warrant. One of the principal
“No. 1. — I instruct you that if you believe from the evidence that the defendant, William Doidge, while ■making the arrest of the plaintiff, used only such force as to him, the said Wm. Doidge, appeared necessary to accomplish the same and to defend himself from the assault made or attempted to be made on him by the plaintiff, then your verdict should be for the defendant.”
This was followed by No. 2, which was in exactly the same language except the words “and to defend himself from the assault made or attempted to be made on him by the plaintiff.” The jury returned a verdict for the defendants, and a motion for a new trial was granted for the reason “that the court erred in giving instruction number one asked for by said defendants, and for that reason only.”
The sold question is whether the court erred in granting a new trial for the one reason assigned. Upon the argument the second instruction referred to was criticized, but the briefs both state that there is but one question in the case — the correctness of the quoted words — and this is correct. It may be proper to say, however, that the true rule is that the defendant could use only such force as reasonably appeared necessary to him. (Sloan v. Pierce, 74 Kan. 65, 85 Pac. 812.)
The fault found with instruction No. 1 is that it assumed a fact and amounted to an assertion by the
In criticizing the instruction the plaintiff can not be charged with singling out one of the many expressions in a charge, regardless of the others, for this is the only one touching the mattér of assault by the plaintiff. Situations in some degree similar were touched upon in Baugh v. Fist, 84 Kan. 740, 115 Pac. 551; The State v. Swartz, 87 Kan. 852, 854, 126 Pac. 1091; and Barker v. Railway Co., 88 Kan. 767, 772, 129 Pac. 1151.
Granting a new trial is attended with different circumstances from refusing one, and a much stronger showing is essential to establish error in such ruling. (City of Sedan v. Church, 29 Kan. 190; Brick Co. v. Silvers, 79 Kan. 694, 100 Pac. 477; Turner v. Bank, post.) The trial court evidently concluded, after considering the effect of the charge given, that the plain
The order is affirmed.