56 Neb. 600 | Neb. | 1898
Mary McClellan, in her own behalf and as next Mend for her minor children, commenced this action in the district court of Madison county against John Hein, a licensed dealer in intoxicating liquors in the town or city of Madison, and the co-defendants, his sureties on his bond as such dealer, to recover damages alleged to have been suffered by plaintiff as occasioned by reason of the intoxication of her husband produced by liquors procured of the principal defendant, John Hein, in his saloon or place of business.. It was pleaded that the intoxication, the cause of the damages, was of date December 31, 1892, and in this connection it was further stated: “That on the said 31st day of December, 1892, while so intoxicated as aforesaid, the said Edward D. McClellan undertook to drive his team of horses attached to a sled to his home, about fifteen miles distance from said city of Madison; that immediately upon starting from said city of Madison, said horses became nervous and frightened, and by reason of his said intoxication said Edward D. McClellan was unfit and unable to drive, manage, or control said horses, and in consequence thereof, said horses ran away, throwing said Edward D. McClellan with great force upon the ground, dragging him a great distance over rough and frozen ground, over logs and cross-walks, whereby his face was crushed and bruised, hi's upper jaw badly crushed, his lower jaw fractured in two places, his nose broken, and his spine injured; that by reason •of Ms said injuries the said Edward D. McClellan is unable to breathe through, his nostrils, and is unable to chew or masticate sufficient food to nourish him, and is permanently injured and totally disabled for the per
The answer for the principal defendant consisted of an admission of the fact's that he was a licensed liquor dealer in Mad'ison, had given the bond as alleged in the petition, and that on or about the 31st day of December, 1892, the husband of Mary McClellan, Edward D. McClellan, had met with an accident and been injured, but it was alleged that such injuries resulted from a negligent and careless attempt on his part to drive a somewhat wild and unmanageable team of horses 'attached to a sled, of which many portions, and more especially the particular and immediate ones of the attachment or hitching of the horses, were 'so defectively constructed and unfit for the purpose as to be very unsafe; that when McClellan started from the city to his home, on the day mentioned, by reason of his carelessness in driving, a portion of the gearing to which the horses were hitched failed of its purpose, the team became frightened and ran away, and McClellan received the injuries the subject of complaint in the petition. It was denied that any liquor was obtained on said, day of John Hein or in his place of business by Edward D. McClellan. The permanency of the injuries was also denied. For the bondsmen the answer was a-general denial as to all the allegations of the petition, except the execution of the bond, which was admitted.
The trial judge stated to the jury in-the instructions, and we think correctly, that the disputed questions were: Was the intoxication of McClellan at the time of the injuries of the occasioning cause's of the accident in which they were received? If he was intoxicated at the lime, did the defendant Hein sell or furnish to him any of the liquor which caused ot contributed to such conditions? Has the plaintiff suffered damages by reason of such injuries? There was also a statement in the instructions that all questions of litigation except the three, reference to which by the court we have just
In one assignment of error the complaint is of • the allowance, in certain designated questions asked of Edward D. McClellan, of an improper cross-examination. In the argument in this court we are directed on this subject to pages 43 and 44 of the bill of exceptions. In the petition in error the eighth interrogatory on each of said pages-is the one designated, and the only one to which objection was interposed. Of the one on page 43 it must be said it was an inquiry on an entirely different branch of the case than is indicated in the argument, and more over it was not an improper question. In regard to the one on page 44, suffice it to say that it was not objected to as improper cross-examination.
Another subject of argument is that there was admitted testimony 'in respect to negotiations for a settle ment between Edward D. McClellan and the proprietor of a saloon other than Hein, and at whose place of busi ness it was claimed McClellan procured some of the liquor he drank on December 31. The greater portion oJ this testimony was received without objection, but it was moved that all of the testimony of the witnesses whe gave it, on this subject, be stricken out, which motion wa overruled. Whether it should sustain the motion t strike out was discretionary with the trial court, an naught but an abuse of such discretion would call for reversal of the judgment. (Gran v. Houston, 45 Neb. 813. This testimony, we think, was wholly immaterial; but in view of the issues and the manner they were present» by the instructions for the consideration of the jury, i does -not seem probable or possible that any prejudic did or could result to the rights of the complainant through its reception, and the‘assignment of error mus be overruled. (Hanover Fire Ins. Co. v. Stoddard, 52 Ne 745; Graham v. Frazier, 49 Neb. 90; Rightmire v. Huntman, 42 Neb. 119.)
Whether the plaintiff should be allowed in furtherance of justice to open the case and introduce the further testimony offered was discretionary with the trial court, and to work a reversal of the verdict and judgment there must have been an abuse of discretion elemental of the ruling. (Omaha Real Estate & Trust Co. v. Kragscow, 47 Neb. 592.) The matter offered was corroborative of one point in the case in chief of plaintiff,—i. e., the question of whether Edward D. McClellan obtained any intoxicating liquor in Hein’s saloon on December 31, and could all have been properly introduced as part of the plaintiff’s evidence in chief; but it was also directly contradictory of testimony on the same point introduced for the defendants, and might properly, and without an abuse of the discretion of the trial court, have been received in rebuttal,, and without error. (8 Ency. Pl. & Pr. 132; Goodman v. Kennedy, 10 Neb. 270.) But when the issues in litigation are considered in this connection, and that there were two vital branches thereof, a determination of either of which, independently of the other, favorably to I the contention for defendants, must lead to a verdict in I their favor, it becomes apparent that it cannot be soundly asserted that the ruling here was prejudicial; land this view is strengthened by the proposition that the
It is argued that the court erred in giving in- charge to the jury instructions numbered 2 and 3 requested for defendants. As we view the case, if it be conceded that these instructions were not applicable to the issues or evidence, and they probably were not, yet it must be said that it is evident no prejudice resulted from their giving, and no reversal of the judgment can be claimed successfully. (Burlington & M. R. R. Co. v. Gorsuch, 47 Neb. 767.)
An attack is made upon an instruction numbered. 7 of the court’s charge to the jury. The instruction was in, the following terms: “If you find from the evidence that the accident in question would have happened' whether plaintiff: was drunk or sober, then, of course, the plaintiff cannot recover, and your verdict should be for the defendants; but if you find from the evidence that McClellan was intoxicated, and that the accident would not have happened but for that fact, and that the plaintiff, or her children, have been injured in their means of support, then and in that case you should find for .the plaintiff, provided you further find that the defendant Hein, at his saloon in Madison, Nebraska, sold or furnished said McClellan any of the liquor that caused or contributed to his intoxication.”
Before examining the questions raised in regard to the instruction we must notice some objections to the consideration of the exception, and assignment of error, under which this complaint is made, which have been presented in argument for defendants. The exception was as follows: “Plaintiff, excepts to the seventh paragraph of the instruction given on court’s own motion.” Im
It is further urged for defendants that it was a statutory duty of the court to write on the margin of each instruction read in the charge to the jury the word “given;” that there was a failure to d'o this as to the seventh in this ease, and, inasmuch as the foregoing is true, possibly the instruction was not actually given, and plaintiff’s exceptions to it should not be considered. There are several statements in the record which establish with unmistakable clearness the fact that the instruction or paragraph in question was given. Furthermore, where a party directly relies upon the failure of a trial court to write on the margin of each instruction the word “given,” there must have been a specific exception for that reason at the time of the giving, and we feel constrained to hold
It is insisted for the plaintiff that the instruction is defective, in that in the opening sentence it makes direct reference to the intoxication of the “plaintiff,” when doubtless it was intended to use the word. “husband” after “plaintiff’s” in the instruction, or “husband of” before the word “plaintiff.” Whatever may have been the intention, and there can be no doubt about what it was the intention to express, it does not seem possible that the jury could read or hear the instruction without acquiring a full knowledge and understanding of its import in the particular portion to which attention is directed in this branch of the argument.
We may now pass to the consideration of the substance of the instruction.- It is erroneous, in that it states a rule by which there was excluded from the consideration of the jury the intoxication of Edward D. McClellan as a contributing or assisting cause of the accident, and conveyed to that body ,the idea that the intoxication, if determined to exist, must be shown to be the primary or main and governing cause. This is contrary to the established doctrine in this state. Under the provision of our statute it is not necessary that the liquor furnished by the defendant be the sole or even the principal cause of the alleged injury. It is sufficient if it is a contributory cause. (McClay v. Worrall, 18 Neb. 44; Cornelius v. Hultman, 44 Neb. 441; Gran v. Houston, 45 Neb. 813; Sellars v. Foster, 27 Neb. 118.)
There are other assignments of error, but they need no discussion at this time. They are of matters the determinations of which would be of no material assistance in conducting another trial.
The judgment must be reversed for the error in the instruction and the cause remanded.
Reversed and remanded.