88 Neb. 218 | Neb. | 1911
The gist of this action is the defendant’s alleged negligence in operating a street car so that the plaintiff was injured and his vehicle damaged while crossing the defendant’s railway at the intersection of Seventeenth and N streets in the city of Lincoln. The plaintiff prevailed, and the defendant appeals.
The testimony is conflicting and parts of it are extravagant; but, since the jury found for the plaintiff, it is our duty to consider the transaction in the light most favorable to him.
It appears that N and Seventeenth streets are each paved and 100 feet in width; that a sidewalk and parkway cover 20 feet of the space on each side of the streets, and the defendant maintains a double-track railway on N street, which runs east and west; that the surface of N
The defendant criticizes the instructions in so far as they recognize the “last clear chance” doctrine, and insists that no such a cause of action is stated in the petition. It appears, however, that the pleader, after charging many alleged acts of negligence on the part of the defendant and its employees, alleged that the motorman negligently failed to stop the car after he knew the plaintiff was in a perilous situation. The defendant did not move to compel the plaintiff to make the petition more definite or to separately number and state the causes of action, and the court was justified in submitting the case' upon the theory that it involved the law of the “last clear chance.”
The defendant insists these instructions submitted the law of comparative negligence to the jury. We do not. so understand the charge. We do not approve the third instruction because the burden of proving contributory negligence does not shift during a trial, but remains with the defendant if he pleads that defense. Rapp v. Sarpy County, 71 Neb. 382. The court evidently desired to instruct the jury that contributory negligence might be established by the plaintiff’s evidence and they should give the defendant the benefit of all evidence upon that issue irrespective of the source from which it came. The plaintiff’s testimony upon direct as well as upon cross-examination is such that the jury might have found that he was guilty of' contributory negligence, and the defendant was entitled to an instruction giving him the benefit of that testimony. We are of opinion that the instructions did present that principle to the jury, and in so far as the court relieved the defendant of the burden of proof it has no just ground for complaint. The defendant’s counsel, however, argue that the jury should not have been told that contributory negligence to constitute a defense must have been a proximate cause of the accident. A fair construction of this instruction is that the plaintiff’s negligence would not bar a recovery un
Exception is taken to an instruction to the effect that the plaintiff had a right to “drive his team and air compressor across the tracks of the defendant and through the street intersection in question in the condition as to equipment of the vehicle and team disclosed by the evidence.” The court further instructed the jury that any failure on the plaintiff’s part to exercise ordinary care in the control of said vehicle would constitute contributory negligence. It appears that the air compressor was not equipped with brakes, and that no breeching was attached to the harness upon the horses, and complaint is made that the instruction withdrew from the jury the alleged negligence of the idalntiff in failing to provide those accessories to his vehicle and harness, but the proof is certain that the want of brakes or of breeching in no manner contributed to the accident. The surface of the street was up-grade from the gutter to the track, and the plaintiff’s failure to halt before crossing cannot be attributed to the condition of the harness or to the want of brakes upon the air compressor.
The defendant’s counsel print in their brief nine instructions requested by them and not given by the court. The court’s charge contained the greater part of the principles of law embodied in those instructions, and, so far as we are advised, no error was committed in not giving them verbatim. Curry v. State, 5 Neb. 412.
Upon a consideration of the entire record, we find no error prejudicial to the defendant. The judgment of the district court, therefore, is
Affirmed.