76 Neb. 570 | Neb. | 1906
The plaintiff, Mannion, in his petition filed in the district court, alleges that on or about September 15, 1899, he was lawfully standing on the sidewalk on the west side of Louis street and near the east side of a store building occupied by one Hoy, in the village of Newcastle, Dixon county, Nebraska; that the defendant, Talboy, without any notice or warning to plaintiff, and unlawfully, wrongfully and maliciously, with force and violence, pushed and shoved a man, whose name plaintiff'has been informed is John Coleman, against and on the plaintiff, causing plaintiff to be thrown violently into a narrow hole in said sidewalk and against said brick store building aforesaid; that in his fall the plaintiff’s left foot and leg went down into the said hole, while his right foot and leg remained on the sidewalk; that he was severely and permanently injured
Exceptions are taken to the eighth instruction of the court which is in the following language: “You are instructed that if you believe from the evidence that defendant did not push a third person against the plaintiff, or that plaintiff was thrown into said alleged opening in said sidewalk by some person other than defendant, or by the careless or negligent acts of the plaintiff he fell into said hole and was injured, then plaintiff cannot recover and your verdict should be for the defendant.” The ninth
We have read the evidence with some care. It shows that at the date of the accident complained of the plaintiff was standing on the sidewalk described in the petition talking with one Coleman; that a number of other persons were standing or sitting on the walk; that the defendant, in passing by, gave Coleman a push, and it tends to show that as the result Coleman was shoved against the plaintiff who was pushed back into the hole in the walk in the manner described in the petition. There is no word of evidence in the record tending to show that the plaintiff himself was guilty of any negligence. There is no evidence tending to show that he himself contributed to the injury. There is no evidence tending to show that the accident occurred in consequence of the act of any third party. Under these circumstances it was error for the court to frame his instructions in such a manner as to allow the jury to infer or find facts of which there was no evidence. The charge of the court to the jury should always be founded on and applicable to the testimony, and when it is not, and is calculated to mislead the jury in considering the facts of the case, the judgment ought to be reversed. Kilpatrick v. Richardson, 37 Neb. 731; Farmers & Merchants Bank v. Upham, 37 Neb. 417; Esterly H. M. Co. v. Frolkey, 34 Neb. 110; Farmers Loan & Trust Co. v. Montgomery, 30 Neb. 33; City of York v. Spellman, 19 Neb. 357.
There are other errors alleged relating to the admission
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for another trial.
Reversed.