
    J. T. Woodford v. The Wichita Railroad & Light Company.
    No. 15,259.
    (92 Pac. 1133.)
    1. Instructions — Review—Testimony Not Preserved. Alleged errors in the giving and refusal of instructions not considered because the testimony was not preserved.
    .2. Special Questions — Failure to Answer — Waiver. Where complaint of the jury’s failure to answer special questions was first made on review the omission did not furnish a basis for an assignment of error.
    Error from Sedgwick district court; Thomas C. Wilson, judge.
    Opinion filed December 7, 1907.
    Affirmed.
    
      I. P. Campbell, J. Graham Campbell, and Ray Campbell, for plaintiff in error.
    
      Kos Harris, and V. Hams, for defendant in error.
   Per Curiam:

Errors are assigned on the giving and refusal of instructions, but the testimony is not preserved, its purport is not given, and there is not even a statement that there was testimony tending to support the plaintiff’s allegations in his petition. In such a case it cannot be said that an instruction, although abstractly correct, was applicable to the facts, nor that the giving of an incorrect one was prejudicial error. (Auld and Taylor v. Kimberlin, 7 Kan. 601; Town of Leroy v. McConnell, 8 Kan. 273; Comm’rs of Allen Co. v. Boyd, 31 Kan. 765, 3 Pac. 523; Stetler v. King, 43 Kan. 316, 23 Pac. 558; Insurance Co. v. Curry, 44 Kan. 741, 25 Pac. 221.)

Nor is the plaintiff in a position to complain that the jury failed to answer some special questions submitted at the instance of defendant. The jury brought in a general verdict, but in some way overlooked the special questions. Although the omission was patent, plaintiff did not ask that the jury be sent back and required to answer the questions nor object to the reception of the verdict before answers were made. He allowed the jury to he discharged without request or protest, and hence there is no basis for an assignment of error on that ground.

The judgment is affirmed.  