42 Neb. 341 | Neb. | 1894
This action was brought by the plaintiffs in error against the city of Omaha to recover damages to their lot because of street improvements. There was judgment for the city, dismissing the action, and plaintiffs prosecute error.
The plaintiffs are, and they have been for several years, the owners of lot 20 of the S. E. Rodgers’ Oklahoma Addition to the city of Omaha, and lived in the residence situate upon said lot. The premises are situated on the east side of Thirteenth street, and south of Blaine street in said
The first point raised by plaintiffs in their brief as a ground for reversal is based upon the ruling of the trial court in permitting the city to file an amended answer. In the original answer filed special benefits had not been pleaded as a defense. The case, however, was tried by both parties, and testimony was admitted without objection, upon the theory that the question of special benefits was in issue jn the case. After the evidence was all in and plaintiffs’ counsel was making the opening argument to the jury, counsel for the city asked permission to file an amended answer to conform to the facts proved, by setting up special benefits, which request was granted by the court, and an amended answer was filed, over the objections and exceptions of plaintiffs. It was clearly within the discretion ■of the court to permit the amendment. Our statute and practice thereunder, as is shown’by the decisions, are very liberal in allowing amendments, and especially where the object is to make the pleading correspond to the proofs. The allowance of an amendment of a pleading, either before or after judgment, is a matter almost entirely within the discretion of the trial court, and this court will not interfere with the exercise of such discretion of permitting a
It is contended on behalf of plaintiffs that there was prejudicial error in the paragraph of the instructions which states the issues in the case, in that it omitted to state that the allegations of special benefits in the answer were denied by the reply, and that the instruction failed to inform the jury that one of the issues which they were called upon to try was whether the work of grading was performed by the city in a negligent manner or not. It is not claimed that there was a misstatement of the issues, but that the statement was not full enough. The question of negligence in the construction of the work was fully covered by the paragraph alluded to. Plaintiffs cannot predicate error in the giving of this instruction on the ground that it did not comprehend or state every issue in the case, for reason the plaintiffs did not present to the trial court an instruction covering the point omitted from the instruction given. Had this been refused, the plaintiffs would be in a position to have the question reviewed. (Post v. Garrow, 18 Neb., 688; Klosterman v. Olcott, 25 Neb., 387; Woodruff v. White, 23 Neb., 753; Burris v. Court, 34 Neb., 190.) Another reason why the paragraph of the charge already mentioned cannot be considered is that no exception was taken to the giving thereof when the
Criticisms are made in the brief of plaintiffs upon instructions 'numbered from 3 to 10 inclusive, given by the court on its own motion. These instructions cannot be reviewed by us, for the reason that none of them were brought to the attention of the court below in the motion for a new trial. Repeatedly this court has said, in effect, that where no objection is made to an instruction in the motion for a new trial, such instruction cannot be considered on a review of the cause in the appellate court. (Schreckengast v. Ealy, 16 Neb., 514; Weir v. Burlington & M. R. R. Co., 19 Neb., 213; Nyce v. Shaffer, 20 Neb., 509; Omaha, N. & B. H. R. Co. v. O’Donnell, 22 Neb., 475; Sherwin v. O’Connor, 24 Neb., 605.)
It is insisted that the court erred in refusing certain instructions requested by plaintiffs. We must decline to review plaintiffs’ requests to charge, inasmuch as the same were not pointed out in the motion for a new trial. (Omaha & R. V. R. Co. v. Walker, 17 Neb., 435, and cases last above cited.)
Some nineteen different rulings of the trial judge in excluding testimony offered by the plaintiffs are complained of in the brief of counsel. Except in three instances, no foundation was laid by plaintiffs in the lower Court'to have these rulings on the admission of testimony reviewed. While an exception was taken in most instances to the sustaining of objections to questions propounded by plaintiffs to their own witnesses, on their examination in chief, the record fails to disclose that the plaintiffs followed up their
It is contended that error prejudicial to the plaintiffs was committed in admitting the testimony of John Groves, offered on behalf of the city. One of the defenses interposed in the answer of the defendant was that the grading of the street in question in front of plaintiffs’ real estate was done in pursuance of an ordinance of the city duly enacted, approved, and published; that appraisers were called to assess the damages, who reported that plaintiffs, property had not been damaged by reason of the improvement, and that no appeal was taken from the award of the appraisers. For the purpose of establishing said defense the city called as a witness John Groves, city treasurer, who was permitted to testify that the ordinance providing for the grading of the street, and the appointment of appraisers, was published in the World, the official paper of the city, on July 13, 1889. It is argued that the testimony of the witness was incompetent, and that the publication of the ordinance could only be established by the
It appears that in bringing Thirteenth street to grade at the place in dispute the city filled plaintiffs’ premises for some distance from the lot line, and to a considerable depth, with earth. This is made the basis of plaintiffs’ second cause of action. The record fails to disclose that any damages resulted from filling in the lot with earth. The testimony of all the witnesses is to the effect, and the plaintiffs in the first count of their petition so allege, that in order to make the lot and the dwelling thereon accessible from the street, and to put the property to the most desirable and valuable use after the street was brought to the established grade, it was necessary to bring the lot to said grade by filling the same with earth. It is not made to appear how plaintiffs were damaged by reason of the city aiding them in filling the lot. There was no evidence, before the jury which would have authorized them to find for the plaintiffs under the second count of their petition. The
The record before us shows that the jury were permitted,
Affirmed.