103 Neb. 79 | Neb. | 1919
This is an action to recover $10,000 for personal injuries resulting from alleged negligence of defendant,
The first question is raised by an assignment that the trial court erred in overruling a motion to direct a verdict in favor of defendant. This question seems to be presented in two aspects: Failure of plaintiff to deny in his reply the truth of the allegations constituting the plea of contributory negligence, and insufficiency of the evidence to sustain a judgment in favor of plaintiff.
In disposing of the first proposition it is not necessary to inquire- whether the reply in its original form was technically sufficient in the particular mentioned. The issue of contributory negligence was in fact tried by the parties and submitted to the jury, and the trial court, before entering judgment on the verdict, properly permitted an amendment curing the defect. Defendant was in nowise misled or prejudiced by the course thus pursued.
The other proposition seems to be based on a misapprehension of the evidence. The proofs are sufficient to justify the following inferences: Plaintiff was invited to the show, purchased a ticket, entered the tent and properly occupied a seat among many other persons. The seats were in three sections with tiers ascending from front to rear. Recent rains had softened the earth beneath. After the crowd had been seated, the
Another objection to the verdict is based on the admission of evidence that plaintiff had pneumonia while suffering from his broken legs. Testimony of this nature came out on cross-examination of plaintiff and he pursued the subject further. Prejudice to defendant in this respect, however, is not shown. The trial court instructed the jury to disregard such evidence and not to consider it in estimating damages. This cured the error, if any.
Complaint is also made of an instruction that the burden of proving the defense of contributory negligence is on defendant. No-fault is found with the instruction as far as it goes, but it is argued that the trial court should have stated in addition that the alleged conduct of defendant, if proved, “is such contributory negligence and is such disregard of one’s own safety as will prevent recovery in this case.” The charge as a whole included the statement that contributory negligence was pleaded as a defense and that issue was submitted to the jury. To make error
AFFIRMED-.