83 Neb. 378 | Neb. | 1909
This is the fourth appearance of this case in this, court. See 68 Neb. 437; 74 Neb. 769; 79 Neb. 381. The facts are fully set forth in the former opinions. On account of the nature of some of the errors assigned, it becomes necessary to notice particularly the issues as now presented' by the pleadings. The petition, in substance, alleges that the defendant is a common carrier of passengers operating a street railway in the city of Omaha; that, while the plaintiff was a passenger, the car upon which he was riding, through the negligence of the defendant, suddenly left the track and threw the plaintiff violently to the pavement, and that he was permanently injured by the accident. The answer denies that the car left the track and threw plaintiff to the pavement, avers that the car and track were in good order and condition, and were so long before, at the time of, and after the accident. It also avers that the accident was caused from extraneous causes over which the defendant had no control. It also alleges that the defendant was guilty of contributory negligence in riding upon the running board of the car, denies that the plaintiff has been injured permanently or to any extent, and further contains a general denial. The reply denies the new matter in the answer. The case was tried to a jury, and a judgment rendered for the plaintiff, from which defendant appeals.
Instructions should be considered together. Separate clauses or parts of a sentence should not be disconnected from the context, if it is desired to obtain the true meaning of the language. Taking the two instructions referred to together, while the language of the latter may not be entirely proper, we think it impossible that the jury could have been misled with regard to the extent of the duty imposed by law upon the defendant with regard, to the care of its passengers, and, when considered in connection with the evidence in this case, we cannot see how this language, even if objectionable in nature, in anywise prejudices the defendant.
In the whole record we find no prejudicial error. The judgment of the district court is therefore
Affirmed.