497 P.2d 303

MARY E. AUTRY, Appellant, v. WALLS I.G.A. FOODLINER, INC., a Kansas Corporation, Appellee.

No. 46,371Supreme Court of Kansas
Opinion filed June 15, 1972.

SYLLABUS BY THE COURT

Syllabus ¶ 1 and the corresponding portion of the opinion in Autry v. Walls I.G.A. Foodliner, Inc., filed May 6, 1972, and reported at 209 Kan. 424, 497 P.2d 303, are hereby deleted and withdrawn. The decision is adhered to in all other respects.

Appeal from Sedgwick district court; ROBERT F. STADLER, assigned judge. Opinion denying rehearing and modifying decision filed June 15, 1972.

Patrick F. Kelly, of Render, Kamas Kelly, of Wichita, argued the cause and was on the brief for the appellant.

David W. Buxton, of Fleeson, Gooing, Coulson Kitch, of Wichita, argued the cause, and Donald R. Newkirk, of the same firm, was with him on the brief for the appellee.

The opinion of the court was delivered by

OWSLEY, J.:

Our opinion in this case was filed May 6, 1972, and is reported in Autry v. Walls I.G.A. Foodliner, Inc., 209 Kan. 424, 497 P.2d 303.

The appellee has filed a motion for rehearing. The motion has been considered and is hereby denied.

The motion questions the ruling of the court in Syllabus ¶ 1 and the corresponding portion of the opinion. On reflection we agree with appellee’s contention and find Syllabus ¶ 1 and the corresponding portion of the opinion should be and is hereby deleted and withdrawn. We note that appellant joins appellee in its efforts to correct this portion of the opinion.

In our original opinion we held that in order to review the question of whether or not appellee was guilty of negligence as a matter of law a cross-appeal was necessary. We now hold that under these circumstances it is not necessary to file a cross-appeal. This makes the issue of appellee’s negligence reviewable.

The trial court concluded the appellee’s negligence was an issue to be submitted to the jury. We agree with the trial court. Under the facts disclosed by the record we cannot say appellee was free of negligence as a matter of law.

It is therefore ordered that Syllabus ¶ 1 and the corresponding portion of the opinion is deleted. The decision is adhered to in all other respects.

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