City of Eureka v. Neville

79 P. 162, 70 Kan. 893, 1905 Kan. LEXIS 73

Opinion

Per Curiam:

The allegation in the petition that the sidewalk was condemned by ordinance went to the question of notice of its condition at the time of the accident. A reference to the ordinance in the petition was unnecessary, but as no proof was offered to sustain the averment we cannot say that the city was prejudiced. That there was a variance between the first instruction and the allegation of the petition as to the place where the accident occurred is too technical.

Instruction No. 16 went to the question of notice. There was some evidence to justify the giving of it. The allegation that plaintiff below sustained bodily injuries was sustained by proof of injury to her hands and wrists. “For the body is not one member, but many.” (I Cor. 12:14.)

We have examined the findings of the jury, and find no inconsistencies sufficient to justify a new trial.

The judgment of the court below is affirmed.