97 Neb. 865 | Neb. | 1915
This is an action by an employee in the water department of the city of Lincoln to recover from his employer damages in the sum of $10,000 for personal injuries sustained September 3, 1908. At that time plaintiff had been in the employ of defendant for a month as a motor-tender at the Eice pumping station near the intersection of Twenty-fourth and N streets. He worked alone at the bottom of a cylindrical pit 50 feet deep and 25 feet in diameter,, where two pumps, propelled by electricity were located. Intending- to prime one of the pumps, which had lost its suction, plaintiff stepped onto a 12-inch wheel on a perpendicular valve-stem extending a foot or more above the floor of the pit and, by the turning of a similar wheel on the end of a horizontal valve-stem about five feet higher, attempted to open a valve between a water main and the pump. The wheel under him turned and he lost his balance. In attempting to protect himself from a fall, he
Failure of plaintiff to file with the city clerk a statement of his claim within 30 days from the date of his injury is argued as a ground of reversal, and the city charter is cited to sustain the argument. Rev. St. 1913, sec. 4582. The identical point under the same petition was decided adversely to defendant on a former appeal. Henry v. City of Lincoln, 93 Neb. 331. The former ruling is therefore the law of the case and will not now be reexamined. Bettle v. Tiedgen, 85 Neb. 276.
The assignment to which the principal argument applies is alleged error in the refusal to direct a verdict for defendant on account of the insufficiency of the evidence to show that the proximate cause of plaintiff’s injuries was the actionable negligence of defendant. The question is a perplexing one. The vital issues are complicated by many charges of negligence. The evidence is voluminous and much of it is the testimony of experts on the- subjects of
Another assignment challenges a ruling admitting the electric switch in evidence. The objection at the trial was: “No foundation laid.” This objection was properly overruled because counsel for defendant had, in his opening statement to the jury, pointed to the switch as the identical one described in the petition.
It is also contended that the trial court erred in admitting in evidence the Carlisle table showing the expectancy of life at the age of 21. Plaintiff was not quite that old when injured. His good health was shown. There was evidence that his earning capacity was permanently impaired by his injuries. These are circumstances under which tables of expectancy are admissible.
There were also objections to rulings on evidence relating to the character and the use of the switch and to plaintiff’s earning capacity before and after the injury, but in these respects error is not affirmatively shown.
The following instruction is challenged as erroneous: “You are instructed that the burden of proof in this case is upon the plaintiff to prove, by a preponderance of the evidence, all the material allegations in his petition. That is to say, that, at the time of the accident alleged, the defendant was guilty of negligence, as stated in the petition; that, as the proximate result of such negligence, the plaintiff sustained injuries, as alleged in the petition, and, by reason of said injuries, the plaintiff has been damaged, as alleged in the petition, and the amount of such damages. When the plaintiff has shown these facts, then the burden of proof is upon the defendant to prove, by a preponderance of the evidence, the allegations of its answer, con
The principal criticisms are: “This instruction shifts the burden of proof and requires the defendant to prove the allegations of its answer, regardless of whether - the plaintiff, by his pleadings and evidence, showed that he was guilty of contributory negligence. It also requires the defendant to establish its freedom from negligence by a preponderance of the evidence.”
When the entire charge is considered, the instruction is not open to the objections urged.
Another instruction contains the following language: “It is also a general rule of law that, where both parties are in the wrong, no liability arises. That is to say, even though you should find the defendant negligent, as alleged in the petition, yet if you should further find that the plaintiff’s own negligence also contributed as the proximate cause of the injury sustained, then in such case no liability would arise against the defendant.”
Another part of the charge reads: “You are instructed that the burden of proving negligence rests upon the party alleging it, and where a person charges negligence on the part of another as a cause of action he must prove the negligence, by a preponderance of the evidence, and in this case, if the jury find that the weight of the evidence is in favor of the defendant, or that it is equally balanced, then the plaintiff cannot recover, and the jury should find the issues for the defendant.”
The charge as a whole required the jury to find, as conditions of the right of plaintiff to recover, that negligence pleaded by him was established by a preponderance of the evidence and was the proximate cause of his injuries. When the instructions are properly interpreted, the. jury were not permitted to find for plaintiff if he was guilty of contributory negligence. The burden of proving that defense was not placed on defendant, unless the allegations of the petition were established. In view of what has been said
The recovery is vigorously assailed as excessive, but a substantial reason for setting aside the verdict on-this ground has not been suggested. Plaintiff was a minor in good health when his hand was burned. He was shocked and his injuries were distressing. He had a good earning capacity, which was permanently impaired. He lost the thumb and the index finger of his left hand. In the cicatrix there was a sensitive neuroma at the time of the trial. To remove it would require an operation. The utility and beauty of a perfect human hand represent the activity and development of the race. The hand protects other parts of the body. Its movements respond to the will and add grace and charm to oral expression. By a caress the hand may communicate the impulses of the heart to others. When it becomes repulsive by a deformity it may produce mental anguish — an element of damage. On appeal it is difficult to determine how much the jury may properly award for pain and suffering and other indefinite, though substantial, elements of recovery. Interference with a verdict as excessive must rest on substantial grounds.
No prejudicial error has been found, and the judgment is
Affirmed.