
    The Atchison, Topeka & Santa Fe Railroad Company v. M. H. Osborn.
    No. 13,517.
    (75 Pac. 1133.)
    Error from Harper district court; P. B. Gtllett, judge.
    Opinion filed March 12, 1904.
    Affirmed.
    
      A. A. Hurd, and O. J. Wood, for plaintiff in error.
    
      I. P. Campbell & Son, and S. S. Sisson, for defendant in error.
   Per Curiam:

The cases cited by plaintiff in error, on misconduct of counsel in addressing the jury, are not in point. In all of them matters not in evidence were stated. In this case the deposition from which Mr. Campbell read in his argument was before the jury in its entirety. The controversy which arose when Mr. Campbell was reading a part of Morgan’s answer, and the demand that he read all of it, must have refreshed the recollection of the jury as to the part omitted, which they had already heard.

The failure properly to burn fire-guards was not found to be the sole ground of negligence of the railroad company, so that the origin of the -fire beyond the right of way did not exempt the company from liability. Other acts of negligence than a failure to burn fire-guards were alleged in the petition, and such other negligent acts were neces- ■ sarily found against the company in the general verdict. ( Railroad Co. v. Chace, 64 Kan. 380, 67 Pac. 853.)

This case has been pending since 1891. It has been in this court twice. (58 Kan. 768, 51 Pac. 286; 64 id. 187, 67 Pac. 547, 91 Am. St. Rep. 189).

The judgment of the court below will be affirmed.  