86 Neb. 586 | Neb. | 1910
The plaintiff in attempting to alight from one of defendant’s cars was thrown to the ground and injured, and brought this action to recover damages which she says she sustained" from such injury. In her petition the plaintiff alleged that while she was in the act of alighting from the car, and before she had sufficient time to do so, the car was suddenly and immediately started forward by the defendant, and that plaintiff was “thereby jerked, thrown, and dragged down from said car to and upon the pavement.” The answer denied these allegations of the plaintiff, and alleged that after the car had passed a certain street the “plaintiff arose from her seat and stepped hurriedly to the running board”, and that the motorman immediately reduced the speed of the car “for a stop at the next street intersection”, and that the conductor of the car “called to. the plaintiff several times to wait until the car stopped, * * * but that plaintiff wilfully, recklessly and negligently jumped from the said moving car to the street” before the car had reached its stopping place. The case was tried to a jury, and there was a verdict for the plaintiff, from which the defendant appeals.
1. The most important question in the case arises from the refusal of the court to give to the jury instruction No. 5 asked by the defendant. The plaintiff, who appears not to have been familiar with the English language, gave her evidence through an interpreter, and in some respects it may be said to be somewhat disconnected; but, taken alto-
In Hoskovec v. Omaha Street R. Co., 80 Neb. 784, the court, after giving, on its own motion, an instruction substantially equivalent to instruction No. 8? given by the'
It will be noticed that instruction No. 7, given by the court in this case, calls the attention of the jury to the fact that upon a certain issue in the case a greater number of witnesses has testified upon the one side than upon the other, and tells them that it is not necessary for them to believe the greater number rather than the smaller number. This is, of course, true, and is a correct statement of the law; but it is in the interest of one party to the litigation and against the interest of the other, and, no doubt, the instruction would be more satisfactory if it presented fully and correctly the interest of both parties in the matter so called to the attention of tlie jury; that is, when any subject embraced in the evidence is brought to the attention of the jury and its effect upon one of the parties explained, it is desirable, and generally thought to be necessary, to explain fully its effects upon either side of the issue to which it relates. The thought that two or three Avitnesses are better than one is not new. “At the mouth of two Avitnesses, or three Avitnesses, shall he that is worthy of death be put to death; but at the mouth of one. Avitness he shall not be put to death.” Deut. xvii, 6. And hundreds of years later, but nearly 2,000 years ago, this thought is repeated by the greatest of- all lawgivers: “But if lie will not hear tliee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established.” Matt, xviii, 16. Can it be doubted that to remind the jury that many witnesses have contradicted one witness upon a vital issue in the case, and tell them that it is not necessary that they believe the many rather than the one, is but a partial statement of an important matter? It is better to fail to instruct upon a particular feature of the evidence, rather than to give an imperfect and partial analysis of it.
In Northern P. R. Co. v. Holmes, 3 Wash. Ty. 543, 18
Instruction No. 5, tendered by defendant, cannot be regarded as a model to be folloAved in such case. It tells the jury that, if “any of the Avitnesses called by one party” have had the means and opportunity of knoAving, etc., the jury should consider the number of such Avitnesses; that is, if the witnesses called by one party avíII compare favorably with the Avitnesses of the other party in the matters enumerated, then you should take into consideration the number that each party has called in the case in determining the facts about which they testify. This is not an accurate statement of the law and might have; misled the jury. The court, therefore, did not err in refusing this instruction.
2. The plaintiff’s physician Avas called as a witness in her behalf, and, having described her physical condition
3. The physician was also asked by plaintiff’s counsel: “Q. Noav, doctor, as to the condition she has been in since this accident occurred, what do you say as to this condition being permanent or simply a temporary condition?” The question was objected to, but the witness was allowed
In Carlile v. Bentley, 81 Neb. 715, which is relied upon by defendant as holding that such a question and answer are incompetent, the question was: “Doctor, I will ask you if, in your opinion, that wound was such an injury as a permanent injury might result from”? And the answer was: “Yes; all that class of injuries might make a permanent injury.” It Avas held that the question was an improper one. The ansAver was a complete answer to an improper question, while in the case that Ave are considering the question Avas a proper one, and the answer incomplete. The witness Avas not cross-examined nor required by the defendant to complete his ansAver. The verdict was not large, considering the injury sustained, and we cannot find that this ruling of the court required a reversal of the judgment.
The plaintiff made unsuccessful efforts to signal the conductor to stop the car, and had been carried by the place where she wished to alight. It appears that she was somewhat confused and may be mistaken in her testimony. The evidence tending to show that she liad neglected the usual precautions as to her own safety is quite strong. All of these questions, however, are for the jury, and we cannot say that the verdict is wholly unsupported. %
The judgment of the district court is
Affirmed.