131 Neb. 217 | Neb. | 1936
This is an action for damages for personal injuries sustained as a result of a collision of an automobile in which the defendants were riding owned by the defendant Joycelyn H. Woods, and then being driven by her husband, the defendant Edwin C. Woods, with a wagon on which plaintiff was riding. The collision occurred after dark on Highway No. 75, a paved highway. Plaintiff was proceeding south with a team of horses hitched to the running gears of a wagon and was riding on the hounds in front of rear axle. Defendants were-also proceeding in a southerly direction on the same highway. Just south of the village of Avery, there is a rather long but not a steep hill near the bottom of which is a slight curve to the right. Close to such curve the driver of the defendant’s car, in attempting to pass plaintiff, struck the rear of the running gears of plaintiff’s wagon, throwing plaintiff therefrom to the highway, with resulting injuries for which he is seeking to recover in this case. The issues involve the question of negligence and the nature and extent of plaintiff’s injuries. By a general allegation in defendants’ answer, contributory negligence is also made an issue. From a verdict and judgment for plaintiff, defendants appeal.
The first five assignments of error will be considered together. By these assignments complaint is made of the ruling of the court during the trial in permitting witnesses, Doctors Nolan and Zimmerer, to answer hypothetical questions, which, it is contended, assumed facts which were for the determination of the jury. The further objection is made to some of the testimony of Dr.
Criticism is also made of the inclusion of a reference to an X-ray plate in a hypothetical question submitted to Dr. Zimmerer. It appears that Dr. Overgaard, whose profession is given as X-ray physician, specializing in that work for the last twenty years, testified at length as to the taking and development of the X-ray of plaintiff’s head; and likewise Dr. Nolan, plaintiff’s physician, at whose request the X-ray was taken, testified at length
By the sixth assignment of error, criticism is made of a remark by court during the examination of a doctor as an expert; reference was made by witness to the “history” of plaintiff’s condition previous to and following the accident which was objected to as hearsay. In ruling on the objection the court stated: “Doctors have a right to have a history of their patients before they give their opinions. Every lawyer knows that. Overruled.” There was nothing objectionable in the first clause of the court’s remarks. While the last clause served no purpose and might better have been omitted; yet, the attention of the trial court was not directed to any objectionable feature of the remarks at that time, in any manner. Ordinarily, error will not be predicated upon remarks made by the court, in the presence of the jury, when the attention of the court was not then called to the matter by objection or otherwise, so as to give the court timely opportunity to correct the prejudicial effect, if any. Payne v. Clark, 117 Neb. 238, 220 N. W. 262. Further, in this case, the remark complained of did not amount to a comment upon the weight of evidence and was not prejudicial. “It is, of course, better practice for a trial court to simply rule upon an objection without commenting on the evidence before the jury; however, a remark which does not express an opinion on the weight of the evidence is not prejudicial error.” Goldman v. State, 128 Neb. 684, 260 N. W. 373.
By the eighth assignment of error, complaint is made of an instruction given the jury on the comparative and contributory negligence rule. On examination we conclude that the record does not disclose any negligence on the part of the plaintiff justifying an instruction on comparative or contributory negligence. An instruction as to comparative or contributory negligence was not required. Under the facts in this case, the instruction given was favorable to the defendant, and not prejudicial. An 'instruction in a party’s favor, though erroneous, is not a ground for reversing a judgment against him. Hanover Fire Ins. Co. v. Stoddard, 52 Neb. 745, 73 N. W. 291.
Ninth, error is assigned in the refusal of the court to give instruction No. 2 requested by defendant, by which offered instruction the court is requested to advise the jury that it is not necessarily negligent for the operator of an automobile to drive at such a rate of speed that he is unable to stop or turn aside in time to avoid striking an object appearing within the range of the lights of his car; and “where the nature of the object or the color 'of a vehicle or animals upon the highway is such as to blend with the surface of the highway, and reduce the visibility thereof, the driver of an Automobile is only required to exercise due care in stopping or turning aside his car, if possible, after such object, vehicle or animals can be seen by the exercise of due care.” The court -nowhere advised the jury that a driver of a car was ■necessarily negligent under such circumstances; but by
Finding no error prejudicial to appellants, the judgment of the district court is
Affirmed.