
    W. G. Reamer and Samuel Johnson v. Joseph W. Columbia.
    141.
    1. Instructions — held to fairly present the law. Instructions in this case considered and held to fairly present the law under the evidence.
    2. -mere omission to instruct on particular matter not error; must he refusal to instruct. As a general rule, where the court properly instructs the jury except that it omits some matter which might properly be given, no available error is committed unless the court has been properly requested to instruct in reference to such matter. The State v. Cox, 1 Kan. App. 447.
    Error from Labette District Court. Hon. J. D. McCue, Judge.
    Opinion filed January 5, 1897.
    
      Affirmed.
    
    
      LeRoy Neal & Son, for plaintiffs in error.
    
      J. H. Crichton, for defendant in error.
   Cole, J.

This action was brought by the plaintiffs in error against defendant in error to recover for damages, alleged to have been sustained through the negligence, carelessness and wilfulness of a servant of the defendant. The cause, was tried by the court and a jury, and resulted in a verdict for the defendant. Several errors are complained of in this court, principally the'instructions given by the trial court. It is contended by counsel for plaintiffs in error that under the evidence there should have been instructions covering the ground, not only of negligence, but contributory negligence ; and it is also contended that the instructions which were given by the court contained material error. We have carefully examined all the instructions which were given, in connection with the evidence which has been carefully read, and, without considering each instruction in detail, we are clearly of the opinion that they cover the evidence and that they contain no material error. This was a case originally commenced before a justice of the peace upon a bill of particulars, and so far as the record discloses the defendant filed no written answer. The evidence was very conflicting and was given by a number of witnesses. There was no request upon the part. of counsel for plaintiff in error that any further or different instructions should be given than those which were given by the court; and while we believe that there are portions of the instructions which, taken by themselves, would be erroneous, yet we are of the opinion that, taken as a whole, they presented the law fairly, and we are satisfied the jury was not misled. As a general rule where the instructions fairly set forth the law of a case, and no further instructions are requested, it is too late to complain when the case reaches a court of review.

The judgment of the District Court is affirmed.  