for a new trial nor in the petition in error, we cannot consider them.

The judgment is affirmed. All the Justices concurring.

(74 Kan. 124)

CUDAHY PACKING CO. v. HAYS. (Supreme Court of Kansas. June 9, 1906.) 1. MASTER AND SERVANT-INJURY TO EMPLOYÉ DEFECTIVE APPEARANCES-NOTICE.

In an action to recover for injuries sustained by an employé of a corporation because of a defective appliance, the knowledge of a representative of the corporation (a foreman in charge of the department where the defective appliance was used) of the defect is the knowledge of the corporation; and testimony of an admission made by such foreman, in connection with the management of such business, that he knew of the defect, is admissible to show the knowledge of the corporation.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 251.] 2. APPEAL-OBJECTIONS TO EVIDENCE.

Where the answer of a witness to a proper question is in part irrelevant and improper, a motion to strike out the objectionable part should be made; and, if it is not brought to the attention of the trial court, its reception is not available error on review. 3. NEW TRIAL - NEWLY DISCOVERED EVIDENCE.

Before a new trial will be awarded on the ground of newly discovered evidence, there must be, among other things, a clear showing that by the exercise of reasonable diligence on the part of the applicant it could not have been procured for the trial.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. New Trial, §§ 210-214.]

(Syllabus by the Court.)

Error from Court of Common Pleas, Wyandotte County; Wm. G. Holt, Judge.

Action by Robert Hays against the Cudahy Packing Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Warner, Dean, McLeod, Holden & Timmonds and McFadden & Morris, for plaintiff in error. S. C. Miller and W. M. Whitelaw, for defendant in error.

JOHNSTON, C. J. This was an action by Robert Hays against the Cudahy Packing Company to recover damages for personal injuries sustained by Hays by reason of the alleged negligence of the company. Hays was an employé of the company, whose principal duties were performed on the second floor of a smokehouse, and who was sometimes employed to remove ham racks from the third to the second floor of that house. On the occasion of his injury he was directed by the foreman to go to the third floor, and bring down some meat racks. These meat racks were suspended from an overhead iron rail system, which included switches by which the racks could be moved to the different apartments of the smokehouse. When Hays went to this room on this mission, he claims to have inadvertently touched a heavily loaded meat rack, and that it fell and injured his foot. The reason it fell, as

he alleges, was that a bolt supporting the end of a rail was out of place, allowing the rail to sag down at a sharp incline, and, the switch being open at the time, the meat rack when moved, ran down the incline and upon his foot. As the room was somewhat dark at the time, Hays did not discover the defect in the rail. The jury found in his favor, and awarded him $450 for the injury sustained.

A ruling on the admission of testimony is the first complaint of the company. Bail

ey was the foreman in charge of the department in which Hays was working. While giving the circumstances of the injury, Hays was asked: "What, if anything, Mr. Bailey, the foreman, said to you immediately after the accident in regard to his knowing that this switch was out of order?" The answer was: "He says to me, after I and him goes up there, he says, 'I went myself about two or three days ago, and told the millwright to have the fellows come right away and fix this switch.' He says, 'I told him two or three days ago to come and fix it,' and he says, 'if they had come and fixed this switch,' he says, 'this never would have occurred.'” A proper objection was made to the question, but none was made to the answer, nor was there any motion to strike out any portion of it. Having shown the defect which occasioned the injury, it became necessary for Hays to prove either that the company had knowledge of its condition, or that it had existed so long that knowledge of its condition will be implied. The inquiry was as to what was said by Bailey immediately after the injury in regard to his knowledge of the defect, and, while the answer was much broader than the question, it elicited testimony of an admission that Bailey had known for several days that the appliance was out of order, and of a statement which was to some extent explanatory of the existing condition of the appliance. Bailey was the foreman in charge of the department, the representative of the company, and his knowledge was the knowledge of the company. The corporation could only act through its managing agents, and, as Bailey was the manager of that department, he stood in the shoes of the company, and his knowledge is legally imputable to the company. The knowledge which a corporation has of its operations is that acquired by its representatives and managing agents. When

such a representative has knowledge of the condition of an appliance in use, the corporation may be said to have that knowledge, and his admission of such knowledge, made in connection with the business he is managing, may be treated as the principal's admission. It is not an admission that an employé of the company failed in his duty, nor that the company was negligent. The virtue of the admission is not so much that it was made immediately after the time of the injury, as that it was made by

a representative of the company, whose knowledge is necessarily that of the company itself. Railroad Co. v. Weaver, 35 Kan. 413, 11 Pac. 408, 57 Am. Rep. 176; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338; Abbott v. Seventy-Six Land & Water Co., 87 Cal. 323, 25 Pac. 693; Halsey v. Railroad Co., 45 N. J. Law, 26; 2 Wharton on the Law of Evidence, § 1170; 3 Wigmore on Evidence, 1797. The question itself was not improper. It is true the answer of the witness was wider in its scope than the question, and a part of it was neither responsive nor competent. But the attention of the court was not called to the answer by an objection, and, as no motion was made to eliminate the objectional part, the company is not in a position to complain of that feature. The way to get rid of an improper answer to a proper question is by a motion to strike out that which is objectionable.

The other objections to rulings admitting testimony are not deemed to be material.

No error was committed in overruling the demurrer to the evidence of the plaintiff below. It is said that there is no showing that the company knew, or should have known, of the defect in the appliance; but, as already seen, there is the direct testimony of an admission by the foreman that he had knowledge of the defect.

We find no error in the rulings charging the jury. The instruction asked by the company, to the effect that under the pleadings the sole ground of the negligence was the insufficiency of the light, was properly refused. The principal ground upon which a recovery was sought was the defective apliance, and the averments regarding the insufficiency of the light were manifestly made to account for the fact that Hays did not observe the defect, and to avoid the implication of contributory negligence. The instructions given state the law correctly, and are not open to the charge of broadening the issues.

A new trial was asked on the ground of newly discovered evidence. The new testimony alleged to have been discovered since the trial appears to be largely contradictory of that given by Hays. If it be granted that the testimony proposed is material, and not merely cumulative or contradictory of that given on the trial, the showing of diligence to produce it at the trial is not sufficient. An affidavit is made by one of the counsel for the company to the effect that an effort was made by him to discover this evidence, and that it was impossible, but no good reason is shown why the names and locations of the employés working with, and who were near to, Hays when the accident occurred could not have been ascertained by the exercise of reasonable diligence. Before a new trial is granted on this ground, a strong showing of diligence is necessary, and if the diligence used since the trial, and which appears to have been no more than

reasonable, had been exercised before the trial, the testimony might have been procured.

We discover no prejudicial errors in any of the rulings of the trial court, and its judgment will therefore be affirmed. All the Justices concurring.

(74 Kan. 65)

SLOAN et al. v. PIERCE. (Supreme Court of Kansas. June 9, 1906.) ASSAULT AND BATTERY-CIVIL ACTION-FINDINGS-CONSTRUCTION.

In an action to recover damages for an assault and battery, where the defendant seeks to justify his conduct upon the ground that he had reason to believe and did believe that it was necessary to protect his father from injury, a finding that the danger to his father was not such as to induce a person exercising reasonable and proper judgment to interfere in order to prevent the consummation of such injury is open to a construction that gives the word "danger" the force of "apparent danger"; and held, that this is the proper construction of such a finding in the present case.

MASON, J. William H. Pierce sued Edward I. Sloan and Henry J. Sloan for damages alleged to have been occasioned by their assaulting and shooting him. The defendants filed answers which, besides denying the plaintiff's allegations, presented in detail their version of the conflict out of which the litigation grew, which was in effect that Pierce, his wife, and son, made an unjustifiable attack upn Henry J. Sloan, and that whatever the latter did was in self-defense; that Edward I. Sloan, the son of his codefendant, interfered to protect his father; and that whatever he did was in defense of himself or of his father. Plaintiff recovered a judgment, from which the defendants prosecute error.

Complaint is made that the instructions of the trial court did not sufficiently advise the jury of the nature of the defense relied upon. If error was committed in this regard, it was rendered immaterial by the fact that special findings were made which were entirely destructive of the defendant's claims. Mfg. Co. v. Nicholson, 36 Kan. 383, 13 Pac. 597; City of Kinsley v. Morse, 40 Kan. 577, 20 Pac. 217. The assignment of error chiefly argued is the refusal of the court to give an instruction reading as follows: "If you find from the evidence that the defendant, Edward Sloan, at the time he shot at said Pierce through the south window of said

dwelling house, said Edward in the exercise of reasonable and proper judgment, in order to prevent the consummation of injury to his said father, believed it was necessary to fire such shot, then said Edward was justified in firing the same, and it was not necessary that his said father should have been in real danger of great bodily harm to justify such shooting; and if the jury believe from the evidence that the danger to said Henry was such as to induce a person, exercising a reasonable and proper judgment, to interfere in order to prevent the consummation of such injury and to shoot at or shoot said Pierce, your verdict should be for the defendant, Edward Sloan." The answer of the defendant Edward I. Sloan showed that his contention was that when he fired the shot referred to he had good reason to believe and did believe that such act was necessary for the protection of his father, and to prevent his father's being injured by the plaintiff and others. Upon this branch of the case the jury made the following finding: "Was the danger to said Henry Sloan, at the time said Edward shot through said south window, such as to induce a person, exercising reasonable and proper judgment, to interfere in order to prevent the consummation of such injury? A. No." If this is, in substance, a determination by the jury that the situation, as it was presented to Edward Sloan at the time he fired the shot in question, was not such as to warrant him in believing that his interference was necessary to prevent injury to his father, the court's omission to give the instruction requested became entirely immaterial. A judgment cannot be reversed for the failure of the court to instruct the jury as to the effect of a condition which they find never existed.

But plaintiffs in error maintain that the finding is not open to this construction; that it is not inconsistent with Edward's claim that he acted in the reasonable belief that his succor was necessary to prevent injury to his father, although in fact there was no real danger. Clearness would have been promoted by the insertion of the word "apparent" before the word "danger"; but under the circumstances of this case the meaning must be held to be the same. The reference in the finding to the exercise of a reasonable and proper judgment plainly has regard to the use of that faculty in deciding the reality of a danger, as well as in estimating the severity of its possible consequences. The question submitted to the jury was prepared by the defendant's counsel, and followed literally the language of the rejected Instruction. This language was manifestly borrowed from that employed in 3 Cyc. 1075, in discussing among other things the right of one whose relative is assailed to act upon appearances. It is there said: "A person is justified in using sufficient force to protect his wife, children, or other members of his

family, though the danger must be such as to induce one exercising a reasonable and proper judgment to interfere to prevent the consummation of the injury." This text was evidently borrowed in turn from Hill v. Rogers, 2 Iowa, 67, where the context shows beyond question that the word "danger" is used with the force of "apparent danger." The second paragraph of the syllabus, substantially following the opinion, reads: "In order to justify an assault by the father, in the defense of his son, or the protection of his own property, it is not necessary that such son shall be in real danger of great bodily harm, or that such property be in actual danger of material injury; but if the danger is such as to induce a person, exercising a reasonable and proper judgment, to interfere, in order to prevent the consummation of the injury, it is sufficient." It is thus seen that the language of the finding under consideration has been used by careful writers to express the thought that a person's conduct is to be judged by his situation as it reasonably appears to him. To give it a different meaning here to interpret it as referring to an actual rather than to an apparent danger-would be to construe it too narrowly.

Other rulings relating to instructions given and refused are challenged. They have been examined and are found not to be materially erroneous. Complaint is also made of the rejection by the court of evidence offered by the defendants to show the circumstances of a previous encounter between Henry Sloan and his daughter, who was Pierce's wife. So far as the questions ruled out indicate the nature of the evidence sought to be elicited by them the error, if any, seems to have been cured by permitting the substance of it to get before the jury at other times. No offer of proof was made otherwise than by asking these questions, and it cannot be said that any important right was denied the defendants in this regard.

The judgment is affirmed. All the Justices concurring.

(74 Kan. 70)

EVANS v. CITY OF CONCORDIA. (Supreme Court of Kansas. June 9, 1906.) MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALK-ICE AND SNOW.

In an action against a city for injuries from a fall upon a sidewalk covered with ice and snow, where it appears from plaintiff's opening statement that the ice, which accumulated from natural causes, was less than an inch in thickness, and plaintiff knew when he went upon it that the ice was smooth and slippery, and he fell by reason of its smooth and slippery condition, and no other defect is claimed, a judgment for costs against plaintiff in favor of the city will be upheld.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1627; vol. 46, Cent. Dig. Trial, §§ 367, 388.]

(Syllabus by the Court.),

Error from District Court, Cloud County; W. T. Dillon, Judge.

Action by Silas S. Evans against the city of Concordia. Judgment for defendant, and plaintiff brings error. Affirmed.

Theodore Laing, for plaintiff in error. A. L. Wilmoth and Earl V. D. Brown, for defendant in error.

PORTER, J.

In an action for damages for injuries received in a fall upon an icy sidewalk, the trial court rendered judgment in favor of the city and against plaintiff in error for costs, upon the opening statement to the jury of the facts which plaintiff in error expected to prove. Error is predicated upon this ruling of the court.

In his statement plaintiff in error followed the averments of his petition, which were, in substance, that on the night of January 19, 1904, and on the following day, as the result of rain, sleet, and snow flurries, the walks of the city became covered with a sleety ice to the depth of less than an inch and more than half an inch, which was then, and continued to be, smooth and slippery and difficult and dangerous to walk upon; that the walks were permitted by the city to remain in this condition until on the evening of the 25th of January, when plaintiff, who was walking with due care because he knew that the sidewalk was icy, slipped and fell by reason of the icy, slippery condition of the sidewalk in that particular place. When ice and snow accumulate from natural causes upon the sidewalks of a city, and a person is injured by a fall occasioned by its smooth and slippery condition, is the city liable in an action for damages? This is the sole question in the case. No other defect in the sidewalk is claimed. The same question has frequently been before the courts, and with almost entire unanimity it has been held that, where the injuries were caused wholly by reason of the smooth and slippery condition of the ice and snow, there was no liability for negligence on the part of the city. A distinction has been observed in many cases where the ice or snow has been allowed to form in ridges or uneven places in the walk amounting to an obstruction; but smoothness and slipperiness, being natural conditions, have almost universally been held not sufficient to cast responsibility upon the city. The reasons for the distinction are well stated in Smyth v. Bangor, 72 Me. 249 as follows: "In this cold climate, where ice and snow cover the whole face of the earth for a considerable portion of the year, such an inconvenience ought not, and rightfully cannot, be regarded as a defect. No amount of diligence can keep our streets and sidewalks at all times free from ice and snow, and the latter, when trodden smooth and hard, is nearly, and sometimes quite, as slippery as ice, and travelers will often slip and fall when no one is to blame. To hold towns and cities responsible for such accidents

"But

would practically make insurance companies of them. A block of ice may constitute a defect the same as a block of wood or stone. So a ridge or hummock of ice, may constitute a defect the same as a pile of lime, or sand, or mortar, upon the sidewalk would. But we regard it as now well settled that mere slipperiness of the surface of a highway or sidewalk, caused by either ice or snow, is not a defect for which towns and cities are liable." In Gilbert and Wife v. City of Roxbury, 100 Mass. 185, a case like the one at bar, the action of the trial court in directing a verdict was sustained. In Stone v. Inhabitants of Hubbardston, 100 Mass. 49, it was held that mere slipperiness of surface of a highway properly constructed, and of no unusual slope, was not a defect which would render the municipality liable any more than moisture or mud upon a flagstone or sidewalk. It was said in this case: ice, which by reason of constant or repeated flowing of water, trampling of passengers, or any other cause, assumes such a shape as to be an obstacle to travel, may constitute such a defect." To the same effect see Chamberlain v. City of Oshkosh, 84 Wis. 289, 54 N. W. 618, 19 L. R. A. 513, 36 Am. St. Rep. 928, and cases cited in note; Grossenbach v. City of Milwaukee, 65 Wis. 31, 26 N. W. 182, 56 Am. Rep. 614; Luther v. City of Worcester, 97 Mass. 268; Stanton v. City of Springfield, 12 Allen (Mass.) 566; Borough of Mauch Chunk v. Kline, 100 Pa. 119, 45 Am. Rep. 364; Kinney v. City of Troy, 108 N. Y. 567, 15 N. E. 728; Harrington v. City of Buffalo, 121 N. Y. 147, 24 N. E. 186; Chase v. City of Cleveland, 44 Ohio St. 505, 9 N. E. 225, 58 Am. Rep. 843; Broburg v. City of Des Moines, 63 Iowa, 523, 19 N. W. 340, 50 Am. Rep. 756. Most of these cases are from the extreme northern and eastern states, where the conditions which usually obtain illustrate more forcibly the manifest propriety of the rule. It is urged by plaintiff in error that th mildness of the winters in Kansas requires a distinction to be made, which has been recognized by some courts, based upon climatic conditions; that, where the winters are so mild that ice and snow are comparatively infrequent, the municipality should be held to a higher degree of diligence. Thus it was said, in Scoville v. Salt Lake City, 11 Utah, 60, 39 Pac. 481, cited by plaintiff in error: "Differences of climate and locality are to be considered in determining the liability of municipalities for their failure to exercise care in removing ice and snow from their walks. Each case must be considered with reference to the climate of the place. In Minnesota, where ice and snow exists almost constantly through the winter season, to require municipalities to keep their walks absolutely free of ice and snow would be highly unreasonable. But in other localities, and in a warmer climate, like Utah, where snow and ice, although not unusual, are by no means continuous, to require the municipali

ties to keep their walks free of ice and snow, especially in particular localities, is by no means unreasonable." .

An examination of this case discloses, however, that the decision is not placed upon the reasons stated in the excerpt. It appeared that the ice in question was not formed by natural causes, but by water discharged upon the sidewalk by means of a defective conductor, and that the city had permitted the ice to remain for an unreasonable length of time in a rounded and uneven condition, so the portion of the opinion relied upon seems not to have been necessary to the decision. On the other hand, the Supreme Court of Missouri, in Reedy v. Brewing Ass'n and City of St. Louis, 161 Mo. 523, 61 S. W. 859, 53 L. R. A. 805, a recent and parallel case, arising in a locality not more subject to the natural accumulation of ice and snow than the city of Concordia, Kan., if we may take notice of the weather reports, recognizes the force of the rule established in the northern and eastern states, although affirming a judgment against the city upon other grounds. It was held that smooth and slippery ice covering a sidewalk at one place, which formed from water running off the roof of an abutting building on account of a leak in a water pipe, is a dangerous obstacle which the city is bound to remove within a reasonable time after notice, where it was not shown that there was any other ice or snow in the city. The court refers to the well-established doctrine that a city is not liable for injuries caused by smooth and slippery ice, where it has formed generally upon the streets and walks, and where no special defect is shown, and mentions two well-founded reasons for it: First, it is not one of the law's reasonable requirements that a city should remove from the many miles of walks the natural accumulation of ice and snow because such a requirement is impracticable from the nature of things; second, because when these conditions exist generally they are obvious, and every one who uses the sidewalks at such times is on his guard, warned by the surroundings and the danger of slipping at every step. These reasons meet with our approval. To hold otherwise would cast upon cities a burden for which they are not responsible and greater than their ability to provide for. This rule has reference to a general accumulation of ice or snow from natural causes, where no other defect in the walk is shown, except the natural slippery condition of the ice or snow. The judgment will be affirmed. All the Justices concurring.

(74 Kan. 113)

ROBBINS v. PHILLIPS et al.

SAME v. BROWER. (Supreme Court of Kansas. June 9, 1906.) TAXATION - TAX DEED-CONSIDERATION-RECITALS.

The statutory form of tax deed does not require that the source of the consideration for

an assignment of a certificate of sale for land bid in by the county shall be shown by recitals preceding the granting clause; and in construing a tax deed which has been of record more than five years a sum much greater than the sale price, with interest, stated as the consideration for such an assignment, will be deemed to be the cost of redemption at the date of the assignment, unless other recitals of the instrument prove the contrary.

(Syllabus by the Court.)

Error from District Court, Kiowa County; E. H. Madison, Judge.

Action between Edward D. Robbins and C. W. Phillips and by Edward D. Robbins against D. M. Brower. From the judgments, Robbins brings error. Affirmed.

J. W. Davis, for plaintiff in error. L. M. Day, for defendant in error.

BURCH, J. The question in this case is if a tax deed is valid upon its face, no attack having been made upon it within five years from the date of its record. The deed is in the following form: "Know all men by these presents, that whereas, the following described property, viz.: Northwest quarter of section one (1), township twenty-seven (27) south, range nineteen (19) west of the sixth principal meridian, situated in the county of Kiowa and state of Kansas, was subject to taxation for the year A. D. 1893; and whereas, the taxes assessed upon said real property for the year aforesaid remain due and unpaid at the date of the sale hereinafter mentioned; and whereas, the treasurer of said county did on the 4th day of September, 1894, by virtue of the authority in him vested by law, at the sale begun and publicly held. on the first Tuesday of September, 1894, expose to public sale, at the county seat of said county, in substantial conformity with all the requisitions of the statute in such case made and provided, the real property above described, for the payment of taxes, interest and costs then due and remaining unpaid upon said property; and whereas, at the place aforesaid said property could not be sold for the amount of tax and charges thereon, and was therefore bid off by the county treasurer for said county for the sum of $11.34, the whole amount of tax and charges then due on the whole of the above-described property; and whereas, for the sum of $67.07, paid to the treasurer of said county, on the 24th day of May, 1898, the county clerk did assign the certificate of sale of said property and all the interest of said county in said property to D. M. Brower of the county of

-; and whereas, the subsequent taxes of the year 1897, amounting to the sum of $6.95, have been paid by the purchaser as provided by law; and whereas the subsequent taxes of the year 1-, amounting to the sum of $- -, have been paid by the purchasers, as provided by law; and whereas, three years have elapsed since the date of said sale, and the said property has not been redeemed therefrom as provided by law: Now, therefore, I, E. A. Northrup,