83 Neb. 599 | Neb. | 1909
Plaintiff brought this action against John Busch and the Title Guaranty &. Trust Company to recover damages for personal injuries inflicted upon plaintiff by the defendant Busch. Plaintiff dismissed his action as to the Title Guaranty & Trust Company, and on the trial recovered a judgment against the defendant Busch, who has appealed to this court.
The defendant contends that the action vAas to recover damages under the Slocumb law, and was based upon the bond, and that under the rule laid down in Andresen v.
The defendant assails a number of instructions given by the court, upon the theory that they were not properly given in an action upon a liquor license bond. The view that we have taken of the petition renders it unnecessary to consider these objections.
The defendant also complains of the second instruction given by the court because it does not submit to the-jury the question of justification or the amount of force that the defendant might properly have used in ejecting the plaintiff from his premises. The defendant denied that there was any assault and battery. The issue of justification was not presented by the pleadings. In Barr v. Post, 56 Neb. 698, it is said: “In a civil suit for assault and battery, where the answer is a general denial, evidence of justification is inadmissible.” In the present action no evidence of justification was offered. The issue was not presented, and the court could not properly submit that issue to the jury.
By the third instruction the court told the jury that, if they were satisfied by a preponderance of the evidence that defendant did not touch or push the plaintiff from the rear door of the saloon, or if. they were not satisfied by a preponderance of the evidence that the defendant
The fourth instruction given by the court is as follows: “If you should find for the plaintiff, then you will assess his damages in any sum not exceeding $5,000 which you may find will compensate him for the injuries received; and this will include his loss of time, his pain and suffering and mental anguish, taking into consideration, at the same time, the age of the plaintiff.” The defendant contends that this instruction was erroneous because it did not confine the jury to a consideration of the evidence in determining the amount of plaintiff’s recovery. In Hoover & Son v. Haynes, 65 Neb. 557, an instruction which directed the jury that, “in the event that you find from the evidence for the plaintiff, you will assess in his favor such damages, within the amount claimed, which is $2,500, as you think he has sustained by reason of the facts alleged in his petition,” was held erroneous for the reason that it did not confine the jury to a consideration of the evidence in ascertaining the amount of plaintiff’s recovery. In commenting upon the instruction the court said: “Instead of telling the jury they are to be governed by the evidence introduced on the trial, they are told to substitute what they think in its stead, and the only limit placed upon what they think is $2,500, and the basis of their thought is not the facts established by the evidence, but the allegations contained in the petition.” But we think there is a difference between the instruction given in Hoover & Son v. Haynes and the fourth instruction in the instant case. It is a well-established rule of law that the whole of the court’s charge to the jury should be considered together. By the second instruction the
The defendant complains because the court failed to submit to the jury the issue of contributory negligence. A sufficient answer to this is that, while contributory negligence was pleaded by the defendant, the evidence fails to disclose that there was any contributory negligence or any negligence upon plaintiff’s part. It was neither necessary nor proper for the trial court to submit to the consideration of the jury a defense that had no support in the evidence.
The defendant complains that the verdict and judgment are not sustained by and are clearly contrary to the weight of the evidence. Plaintiff testified that he received ids injuries substantially in the manner alleged in the petition, and there is but slight corroboration of his testimony. Two ladies, who were passing along a sidewalk just opposite the saloon building, testified that they heard loud talking and sounds as of shuffling or running across the floor of the saloon, and as they reached a point on the walk opposite the rear end of the saloon they heard a man groan; that they went on a few steps, and then returned to ascertain who was injured, and discovered the plaintiff lying upon the ground with his leg brokén. Upon the other hand, the evidence shows that about 12 or 14 feet of the rear of the saloon was separated from the front part by a partition, in which there was an archway, and that the rear door of the saloon was some 12 or 14 feet from the partition. There were four or five persons in the' saloon at the time of the controversy, all of whom, with the defendant, testified that defendant did not touch or strike the plaintiff; that plaintiff ran out of the saloon at the rear door, and defendant followed him no further
We find no prejudicial error in the record, and recommend that the judgment of the district court be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.