82 Neb. 495 | Neb. | 1908
Plaintiff alleges that on November 17, 1905, while he was unloading sugar beets from his wagon into a car of
In their brief, counsel for defendant say: “There is a great deal of doubt as to whether the company caused any injury to the mare which afterwards died, but this question was properly submitted upon conflicting testimony, as were the questions of defendant’s negligence and the contributory negligence of plaintiff, and the defendant will therefore confine itself to the limits above suggested.” The limits suggested and upon which defendant relies for a reversal are: “(1) The court erred in admitting certain testimony from the plaintiff over the objection of defendant. (2) The court erred in overruling the defendant’s motion for a new trial. (3) The verdict is contrary to instructions, is excessive, appearing to have been given under the influence of passion and prejudice, and is not supported by the evidence.”
The testimony which it is claimed the court erred in admitting was the testimony of plaintiff as to the value of the mare in controversy. Defendant’s objection is that
It appears from the evidence that plaintiff paid $75 for the wagon about a year before the accident. He testified that at the time of the accident the wagon was as good as new. Only the running gear of the wagon was involved, as the box and seat were not on the running gear at the time of the accident. The undisputed evidence shows that the running gear alone was worth, new, $51. Plaintiff says that at the time of the accident it was just as good as new. Of that fact the jury were the judges. Plaintiff testified that immediately after the accident the wagon was not worth to exceed $5, and expressed doubt as to his ability to sell it for even that amount. No evidence was offered by defendant as to the value of the wagon immediately after the accident, but an attempt was made to minimize its loss by proving that after the accident plaintiff abandoned the wagon; that he left it on defendant’s track, and notified defendant that it was its wagon; that defendant thereupon had the wagon repaired at a cost of $20.75; and its same witness, Keith, testified that after it was repaired the wagon was worth $35. Defendant therefore insists that this $35 be deducted from the value of the wagon immediately prior to the accident in determining the amount for which defendant should be held liable. We have very grave doubt as to the right of defendant to offer this proof under the general denial and plea of contributory negligence contained in its answer. But, whatever view may be taken of that question, the measure offered by defendant is not the true measure of damages in this state. í?he rule which we laid down in Chicago, B. & Q. R. Co. v. Metcalf, 44 Neb. 848, is the established rule in this state, viz.: “Where chattels are injured by the negligence of another, but not wholly de
We see no error in the record, and recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.