89 Neb. 146 | Neb. | 1911
This is an action for damages for an assault and battery. The plaintiff prevailed, and the defendant appeals. .
The defendant pleaded self-defense, and that, while he ' was interposing a meat cleaver between himself and the plaintiff, the latter struck the instrument and wounded himself. The plaintiff’s testimony that the defendant made qn unprovoked assault upon him with a cleaver is corroborated by other evidence. The defendant’s test!
The court on its own motion instructed the jury as follows : “If one attacks another with a dangerous weapon, without just cause, and that other is injured, then the attacking party must respond to the party attacked in damages. On the other hand, when a person is attacked, it is his duty to flee, if he can do so with safety to himself, before he would kill the attacking party, or inflict upon that party great bodily injury. In other words, as the books have it, the party attacked must retreat to the wall. But by this is not meant that a party must always flee, or even attempt flight. The circumstances of the attack might be such, the weapon with which he is menaced, of such a character, that retreat might well increase his peril. By retreating to the wall is only meant that the party must avail himself of any apparent and reasonable avenues of escape by which his danger might be averted and the necessity of striking his assailant avoided. But, if the attack is of such a nature, the weapon of such a character, that to attempt a retreat might increase the danger, the party need not retreat.” This instruction purports to state the conditions upon which the defendant may justify his conduct. The instruction is not applicable to the facts in this case as testified to by either litigant. No witness testifies that the- plaintiff was armed with a weapon, nor does the defendant say that the plaintiff attempted to kill him. On the other hand, while the instruction is predicated upon a hypothesis finding no support in the record, it assumes to instruct the jury that, before the defendant may be heard to justify on the ground of self-defense, he must have retreated to the wall, unless by so doing his danger would have been increased. Now, it is plain from the evidence that the defendant would
Of course, if the cleaver were raised instinctively by the defendant so that the plaintiff’s arm came in contact therewith while he was attempting to strike the defendant, the defendant would not be liable. The plaintiff argues that, because the defendant so testified, the instruction criticised, if erroneous, could not have prejudiced him. We
The judgment of the district court therefore is reversed and the cause remanded for further proceedings.
Reversed.