110 Neb. 92 | Neb. | 1923
Action on the part of plaintiff, Maníes Aeree, against defendants, Union Pacific Railroad Company, John Schell, and Roy North, to recover damages for assault and battery and false arrest.
For first, cause of action plaintiff, in substance, alleges that defendants Schell and North were employed by de
For his second cause of action plaintiff reavers the substance of the facts above stated, and alleges that after the commission of the assault, as above set forth, defendants Schell and North did unlawfully and forcibly arrest said plaintiff, forcing him to give bond for his release, to his damage in the sum of $450, for all of which plaintiff prays judgment for $3,000.
The defendants each file separate answers. The defendant railroad company, for its answer, admits that defendant Schell was employed by the defendant company to guard and protect its property in the yards in and about Sidney, but denies each and every other allegation in plaintiff’s petition.
The answer of defendant Schell is identical in substance to that, of the railroad company.
The answer of defendant North denies that he was in
Plaintiff’s several replies to the respective answers- deny each and every allegation therein contained, except only such as are admissions of allegations of plaintiff’s petition. A trial before a court and jury resulted in a verdict and judgment for plaintiff for $3,000. The defendant railroad company only appeals.
Except that defendant North was not in the employ of defendant company, but was a volunteer on the occasion in question, we think it fair to say that the allegations of plaintiff’s petition are well sustained by the evidence as to both causes of action. We think it also fair to say that from the evidence of defendant Schell and North it appears that, as they were passing down the railroad-track on the night referred to, they saw three men in the vicinity of the railroad company’s cars containing merchandise, acting in a suspicious manner, and, as defendants approached, one of the three escaped in a southeasterly direction, the other two in a slightly different direction, and it was while defendants were, returning from a chase of the latter two that thev discovered plaintiff walking eastward on the Lincoln highway, and, supposing him to be the first of the three who escaped, -accosted him, and
The defendant presents several assignments of error, the first of which is to an instruction designated as No. 9, wherein the court told the jury, in substance, that even if they should find from the evidence that defendant Schell did not actually strike plaintiff, yet if he was present and did aid, abet and encourage defendant North to commit the assault, and that at the time of so doing he was acting within the scope of his employment with the railroad company, as explained in other instructions, then Schell and the railroad company would be equally liable with defendant North. The defendant does not criticise this instmiction as a correct statement of the law, but claims there was no place for it in the evidence. To this, of course, we cannot agree. The plaintiff testified that Schell actually struck him. While defendants deny this, they both testify that Schell climbed over the railroad fence, intercepted the plaintiff as he was walking on the public highway, commanded him to stop and throw up his hands, and, Avhile North immediately set upon him and beat him, Schell stood by Avith a flashlight in one hand and a loaded revolver in the other, and after the assault took hold of plaintiff and, together Avith North, forced him to the courthouse, Avhere, as the evidence shows, both Schell and North insisted that he be thrown into jail, and only upon giAfing bond Avas he released. This Avas amply sufficient in fact to justify the instruction. So, also, was it sufficient in Ioav. “Tn an assault and battery, not only he who is the actor or actual perpetrator of the offense, but he also who, being present when the act is done, aids and abets therein, is a principal and liable, as such at the suit, of the injured party.” Cooney v. Burke, 11 Neb. 258.
Objection is also made to an instruction pertaining to
Defendant complains of the refusal to give an instruction tendered, to the effect that if the jury found certain facts not to exist the defendant Schell and the railroad company would not be liable. The court had already instructed the jury, as to the same state of facts, to the effect that if they found said facts to exist they might find defendants Schell and the railroad company liable. It can hardly be said to be necessary to repeat the same proposition in the negative form.
Another instruction tendered by all the defendants and calculated to apply to all, but refused by the court, invoked the defense of self-defense. Self-defense is an affiirmative defense, and under a general denial only evidence of justification is admissible. Barr v. Post, 50 Neb. 698; Mangold v. Oft, 63 Neb. 397, and cases cited. Neither the railroad company nor Schell pleaded self-defense, and
Numerous assignments of error are made to the admission or rejection of testimony, only one of which, however, we think calls for special mention. Doctor Mantor was the defendant railroad. company’s regular physician at Sidney; he was also the physician who treated plaintiff for his injuries received from the assault, and on one or more prior occasions had treated plaintiff for other ailments, including facial paralysis. The plaintiff calling Doctor Mantor to the stand, he was asked to describe plaintiff's injuries, which he did, and among other things stated that he had sustained a fracture of the jaw. Upon
Other assignments presented in defendant’s brief and not mentioned herein are. regarded as immaterial.' Finding no reversible error in the record, the judgment of the loAver court is
Affirmed.