107 Neb. 684 | Neb. | 1922
. This is an appeal from the district court for Washington county, wherein the plaintiff recovered a judgment for $350 as damages for the alleged negligence of the defendant in killing one mule and injuring another on' its right of way on April 14, 1916, which mules were the property of the plaintiff. The errors complained of by the defendant are that the trial court failed to incorporate in its second instruction, stating the issues, certain material defenses contained in its answer, and that the damages awarded are excessive.
An examination of the second instruction in connection with the defendant’s answer discloses that the omissions to which the defendant takes exception relates to matter incorporated in the second subdivision of the third
The fourth paragraph of the defendant’s answer consisted solely of an offer to confess judgment for a certain sum and costs in full settlement of all of the plaintiff’s claims and demands. This also should not have been submitted to the jury in any form. Rev. St. 1918, sec. 7722.
The defendant does not contend that the two mules were not reasonably worth $350, the amount of the verdict. The defendant offered no evidence as to the value of the mules and the evidence introduced by the plaintiff is ample to sustain the verdict. The defendant’s claim that the damages awarded are excessive, is based upon the contention that injury to live stock does not authorize the owner to refuse to accept it and to recover its full value from the railroad company, but that the owner’s measure of damages is the difference between the market
The record being free from error, the judgment is
Affirmed.