98 Neb. 544 | Neb. | 1915
Action to recover for personal injuries. Plaintiff recovered a judgment for $5,000. Defendant appeals.
The plaintiff, a hoy about 9 years of age, was engaged as a caddy on the grounds of the Omaha Country Club, adjoining the city of Omaha. There is a paved street north of the club-house running east and west, called Main street. Rosehill avenue lies to the west of the club-house, and runs at right angles to Main street. The club-house stands diagonally across the corner between these streets a short distance from the intersection. The usual entrance and exit for automobiles is from the east. Along the sides of the streets and abutting thereon back of the club-house are automobile sheds entered from the yard of the house. South of that part of the automobile shed which abuts upon Rosehill avenue is the caddy house, with a narrow paved driveway between it and the end of the automobile sheds. This leads from the back of the club-house to Rosehill avenue, and is used upon week days for delivery wagons, but on Sundays by automobiles to some extent. On Sunday, May 18, 1908, about 1 o’clock p. mv the defendant had backed his automobile out from the sheds into the yard, and, instead of passing out to the eastward, he drove to Rosehill avenue through the narrow driveway between the sheds and the caddy house. It was customary at that hour on Sunday for the caddies to be in and playing about the caddy house, yard and adjacent street, and they usually
A motion was made at the close of the testimony to instruct the jury to return a verdict for the defendant, which was overruled. It is asserted that this was erroneous, since there was no evidence to support the verdict. Defendant concedes the rule that, if different minds may reasonably draw different conclusions or inferences from the state of facts established by the evidence, the case must be submitted to the jury, but insists that it would be impossible-for normally constituted minds to reasonably draw different conclusions. We are unable to take this view. The evidence of defendant’s witnesses is to the effect that, after-he backed his machine out from under the shed and was
It is said the evidence will not support a verdict, for the reason that the defendant and three other witnesses testified that the automobile was moving slowly, and that as it came out the plaintiff, running very fast, came to the corner of the caddy house, tried to stop himself, and slid under the wheels. But the question as to the lack of care with respect to giving of a signal remains, and the fact, if conceded, that the boy tried to stop and slid under the wheel, is not material, unless this had concurred with
Error is assigned on account of the refusal of the court to sustain objections to certain questions put to medical witnesses, and in refusing to strike certain answers to such questions. The principal question which was answered requested the doctor to state “the results which, with a reasonable degree of certainty, might follow from a fracture” such as the plaintiff sustained. This does not ask for a mere conjecture, as defendant asserts. The doctor answered, in part, that such an injury “would leave a certain amount * * * of scar tissue, abnormal cells,” and that such a location would be more susceptible to bad effects as a result of some diseases, such as typhoid, than a healthy bone would be; that such an injury is sometimes followed by the development of malignant diseases, such as sarcoma.
A motion to strike the answer was overruled. Part of the answer was strictly competent, relevant, and responsive to the question. It was not erroneous, therefore, to refuse to strike it all. Brown v. Chicago, B. & Q. R. Co., 88 Neb. 604. On cross-examination the doctor stated that, in order for any of these conditions to develop, the diseases themselves would have to occur; that he could not tell in advance that the injury would cause sarcoma; and that he would say it had not happened in the majority of cases. Taking all the testimony together, we think no prejudice occurred.
Complaint is made as to certain instructions, but, considering the charge as a whole, we think the issues were fairly submitted to the jury.
It is complained that the verdict is excessive. The plaintiff was 9 years old at the time of the accident. He received a slight fracture of the left leg, which seems to have made a complete union. He suffered considerable pain, had the leg placed in a plaster cast for about six weeks, and was on crutches a little longer. He was very nervous after the accident, and to some extent to the time of the trial, and has not made as good progress in school
We are of the opinion that the recovery is excessive, and that the verdict should be set aside for that reason, unless the plaintiff remit the sum of $2,500 within 40 days, in which event, the judgment of the district court will be
Affirmed.