The opinion of the court was delivered by
Brewer, J.:The only error complained of is the giving of an instruction which it was claimed was inapplicable to the case, and usurped the province of the jury. So far as the testimony of the plaintiff is presented in the record, the instruction given was plainly applicable. So far as that portion of the defendants’ which appears in the record is concerned, it may be questionable. But the record not only fails to show that all the evidence is preserved, but plainly indicates that there was more received on the trial. More than than that, it fails to show that all the instructions are preserved. Hence it is impossible for this court to say that the instruction was not applicable to the whole case as presented, or ought not to have been given, or to say that if inapplicable it was not so far modified by other instructions as to have wrought no prejudice to the plaintiffs in error. Town of Leroy v. McCornell, 8 Kas., 273; Hynes v. Jungren, 8 Kas., 391. The judgment must be affirmed.
All the Justices concurring.