Caspar v. Lewin

109 P. 669, 83 Kan. 799, 1911 Kan. LEXIS 246

Opinion

Per Curiam:

Only those portions of the petition for a rehearing which undertake to bring upon the record new federal questions need be noticed here. So far as those matters are concerned the petition is founded quite largely upon supposed rulings the court did not make and upon supposed attitudes the court did not assume. For example, it is said that the court concedes that Caspar was guilty of contributory negligence. There is nothing whatever in the syllabus or opinion to warrant the statement. For further example, it is repeatedly posited that Caspar disobeyed an express command of the foreman not to use the ladder. Nowhere does the syllabus or the opinion recognize the existence of any such fact. It is very plain that the jury, as they had the right to do, disbelieved the testimony of the foreman on that subject, and consequently the assumed fact is not in the case and does not exist. A statement of what the court decided appears in the nine paragraphs of the syllabus, but the judgment of the district court is affirmed irrespective of the rulings contained in paragraphs six and seven.

The petition for a rehearing is denied.