62 Neb. 456 | Neb. | 1901
The defendant in error, herein styled the plaintiff, sued the plaintiff in error, herein styled the defendant, in the district court of Sarpy county, Nebraska, for damages alleged to have been caused to the pasture lands, walnut grove and fish-pond of plaintiff’s testator. These lands adjoined the right of way of the defendant, and were alleged to have been damaged by the negligent reconstruction of defendant’s road-bed, by which a natural stream of running water was dammed and caused to flow back on the lands of plaintiff’s testator. Plaintiff had judgment below, and defendant brings error.
With reference to the contention that the damages sued for in this cause Avere only such as Avere included in the award of damages allowed in the condemnation proceedings Ave can not agree Avith the conclusion of defendant’s able counsel. Damages awarded in condemnation proceedings for a right of way are allowed on the supposition that the road will be skillfully constructed, not only with reference to the safety of the traffic on such railroad, but also that it-shall be constructed in harmony with the spirit of the maxim which says, “So use your own as not to in
The contention that the statute of limitations has barred this action seems to be founded on the theory that because the road was built in the year 1890 plaintiff should have immediately anticipated all the injury that might ever accrue to his land by reason of any defective construction of defendant’s road, and have brought his action within the statutory period from the date of the completion of defendant’s road. But this is not the law. A man has no right to anticipate an injury from the probable negligence of some one else. The statute of limitations does not run until the injury has been actually received. Plaintiff had no right to sue defendant until defendant injured him by a negligent act. His right of action did not accrue in this case until his land had been overflowed; hence the statute of limitations would run from the date of the over
Defendant, in its brief, attacks the instructions of the court or rather some isolated paragraphs of them. These instructions were all given orally to the jury by consent of both parties to the suit, and they are not free from criticism on account of being illogically connected and lacking the clearness and precision that characterizes commendable instructions. But taken as a whole they certainly give the defendant the benefit of everything it was entitled to in this controversy — in fact two instructions were given, at the request of the defendant, that would appear to be clearly erroneous, and given as they were, without a proper qualification, might have misled the jury, to plaintiff’s material damage; but as plaintiff prevailed below, these instructions will be held to be error without prejudice. The policy of giving oral instructions in the trial of important cases is never to be commended; and it is only permitted when consented to by both parties. It invites inaccuracy and a want of precision in the phraseology of the charge, which always leaves it open to criticism by the unsuccessful party in the suit. The parties who invite oral instructions, do so with notice of the probability of this defect. When the instructions so given, taken as a whole, fairly present the issues to the jury, we will not examine for .fly-specks on the sentences and phrases that compose the charge.
It is therefore recommended that the ju.dgment of the district court be affirmed.
For the reasons stated in the foregoing opinion the judgment of the district court is
Affirmed.