90 Neb. 709 | Neb. | 1912
Lead Opinion
This case is before us for the fifth time. The history of the case and of the matters in controversy will be found in our former opinions reported in 63 Neb. 813, 66 Neb. 473 and 476, and 72 Neb. 93. The last trial was held at the February, 1910, term of the district court for Sarpy county. There was a trial to the court and a jury and a
The only contention made here is that the verdict is not sustained by the evidence. In his brief counsel for plaintiff states that it is only necessary to discuss the following questions: “(1) Whether or not at time of making the repairs by plaintiff, in 1900, on the bridge in question, the same was a public wagon bridge and formed and was used as a part of the public highway. (4) The reasonable value of the repairs so made necessary to put said bridge in safe condition for public travel. (7) The issue was also raised by the pleadings as to whether or not said bridge was actually repaired, or whether it was not a new construction so as to render defendant not liable.”
Under the rule announced by this court in American Fire Ins. Co. v. Landfare, 56 Neb. 482, Farmers Bank v. Garrow, 63 Neb. 64, and Missouri P. R. Co. v. Hemingway, 63 Neb. 610, plaintiff is not in a position to urge the insufficiency of the evidence to sustain the verdict on point 1. At the conclusion of the trial plaintiff, without any motion for a directed verdict or objection of any kind that the evidence was insufficient to warrant a verdict in favor of defendant, requested, and the court gave, instructions 3 and 4, covering the question involved in point 1. The verdict having been adverse to plaintiff, it cannot now be heard to assert that there was not sufficient evidence upon that point.
Point 4 need not be considered, for the reason that, the verdict having been for defendant, the question of the reasonable value of the repairs is immaterial for the purpose of this review.
The rule above announced, and held to be applicable to point 1, has no application to point 7, for the reason that no instructions upon that point were requested by plaintiff. As no special findings were submitted to and returned by the jury, it is impossible to say upon which of these two points the verdict of the jury was based. If upon point 7, we think the contention of plaintiff, that
The question as to the right of plaintiff to a change of venue is not properly presented by this record. If it were, we might be constrained to hold that plaintiff is entitled to have the venue changed, and the case submitted to a jury free from any local interest or prejudice. The verdict of the jury indicates the propriety of such a course.
The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed;
Dissenting Opinion
dissenting.
I am unable to concur in the opinion of the majority. It appears that the only contention on this appeal is that the verdict is not sustained by the evidence. The main question involved in the trial of this case was whether at the time the alleged repairs were made the bridge in question was a public wagon bridge which was in use as a part of a public highway. This was the primary fact necessary to be established in order to sustain a recovery. The record discloses that the bridge had not been in use for the full period of ten years at the time of the repair or reconstruction for which recovery is sought. It follows that no rights were obtained under the statute of limitations. It appears that at both ends of the bridge the title to the property abutting upon the river banks was in private parties. The evidence is not entirely clear that the lands which constituted the approaches to the bridge had been dedicated to public use by the owners, or legally condemned and opened as a public road. At the conclusion of the trial plaintiff, without any motion for a directed verdict, and without objection of any kind that the evidence was insufficient to warrant a verdict in favor of the defendant, requested the court, by proper instructions, which were given, to submit the main question, above stated, to the jury. This having been done, and the jury having returned a verdict for defendant, counsel for the appellee insists that plaintiff, by causing the sub
The main issue in this case having been submitted to the jury upon instructions prepared and tendered by the plaintiff, and the jury having found against it upon the evidence, such finding should conclude the plaintiff, and terminate this litigation. As stated in the majority opinion, this is the fifth time that this case has been before us. There should, at some time, be an end to litigation. Therefore, I am of opinion that the judgment of the district court should be affirmed.