65 Neb. 612 | Neb. | 1902
Plaintiff in tbis case, a lad of eight years old, says in Ms petition that the defendant company negligently left its train standing across Yine street for a half hour or more; that plaintiff was coming from school, and in attempting to cross without fault was thrown under the
The strongest complaint is of instruction No. 10, given by the court upon its own motion: “Evidence has been introduced bearing upon the time that the defendant’s train was allowed to stand upon the crossing at Vine street. Even though you find from the evidence that the train was allowed to remain longer than the ten minutes permitted by the ordinances of the city of Lincoln, the violation of such ordinance would not constitute a cause of action against the defendant. The fact of such delay, if any, was permitted to be shown only as bearing upon the question as to whether or not such delay might have been the moving or exciting cause, leading the child to act as he did; in other words, as evidence in the case, bearing only on the question of negligence. Evidence has also been introduced touching the manner in which defendant’s servants handled the train, which caused the injury, at other places, and prior to the time when the injury occurred. There has also been testimony tending to show other acts or omissions of the defendant prior to the time of said injury. You are instructed that these should be considered by you only as bearing upon defendant’s negligence or in determining whether the defendant’s negligence was the proximate cause of the injury, and not as constituting additional acts of negligence, for the plaintiff can only recover upon showing by a preponderance of the evidence the particular acts of negligence complained of, on the part of the defendant, that the plaintiff has alleged in his petition.” It is objected first, and chiefly, that
It is claimed on plaintiff’s behalf that when the engineer says he saAV the child jumping on and off, his situation Avas one of such imminent peril that the failure to stop the train and remove the lad from the vicinity of the track Avas of itself negligence for which the jury should have been instructed to return a verdict for the plaintiff. The evidence on this subject does not seem to warrant such an instruction. None such was asked by plaintiff. There Avas no conclusive presumption of negligence on the engineer’s part, merely because he saw a 'boy of eight years jumping on the stirrup and ladder of a freight car going not more than three miles an hour, and jumping off again, and failed to stop to remove him. Whether such failure to act on the engineer’s part was negligence was for the jury to say. The acts complained of in this petition are the leaving of the train upon the crossing, and violently and forcibly throwing the plaintiff from the train, and passing of its
Complaint is made of the refusal to give instruction 5 asked by plaintiff, .to the effect that if the plaintiff was a trespasser, and was discovered on the train in a perilous condition, and the engineer, after discovering it, could by the exercise of ordinary care have stopped the engine and averted injury,. then the trespass of the plaintiff would not prevent a recovery. Instruction 9, as given by the court, told the jury that a child jumping on and off a train would be a trespasser, and this fact, if they found it, should be considered, and would constitute contributory negligence on his part, if they found he was of sufficient age and discretion to be guilty of negligence. It is also stated that if defendant should discover the child in imminent danger, and failed to exercise reasonable care, where such care would have prevented the injury, the child’s action would, be no defense. The court’s instruction submitted the question fully. Counsel seem to recognize this in claiming
It is urged that the court erred in telling the jury that plaintiff must establish “every material allegation” of his petition by a preponderance of the evidence. This, of course, overlooks the admissions in the answer, and it also leaves the jury in the dark as to what are the material allegations of the petition. In Dunbier v. Day, 12 Nebr., 596, 608, it is said that a party has the right to have the jury told that the material facts are admitted when this is the case. Surely, it is still more essential that the jury should not be told that plaintiff must prove material facts which are admitted. In the case cited the admission was that plaintiff was a guest at defendant’s hotel. In this it is that defendant is an incorporated railway company, and that plaintiff was injured on its line. To say that all the material allegations of the petition must be proved was dearly error. It does not seem probable, however, in view of the evidence produced by defendant, that any prejudice resulted from this failure to indicate that important allegations were admitted. Perhaps more harm might be inferred from leaving the jury to determine what were the material allegations of the petition; but no request was made for a more definite statement, and the defect must be deemed waived.
Complaint of the refusal of instruction 1, in regard to a child’s contributory negligence, asked by plaintiff, is not well taken. Instruction 7, given by the court on its own motion, states fully and fairly the degree of care to be required of a child.
Complaint is made of the refusal of the fourth instruction asked by plaintiff, as follows: “Although the plaintiff may be guilty of negligence by placing himself in a dangerous position, yet if the defendant after knowing that the plaintiff is in a dangerous position does not use reasonable care to prevent injury; and injury does result to the plaintiff, then the defendant is liable; so, in this case if you find
Complaint is made as to the rejection of certain testimony of the witness Barnes as to how he knew that the train was standing across the street for about 30 minutes. He had testified to the fact, and in answer to a question as to how the injury occurred, and how long the train stood across the street, related certain circumstances by which he knew the time. This portion of the answer was stricken out as not responsive and immaterial. The matters stricken out were not directly in issue. They were not responsive to the question. They were admissible, if at all, to show why the witness could say the train stood 30 minutes on the crossing. It is by no means clear that there was even an abuse of discretion in striking out his unasked statement as to what he was doing while the train stood on the crossing. Mr. Gillett thinks the rule should be that such evidence .should always be admitted to
A more serious question is raised as to the rejection of certain impeaching testimony. A lad named John Oddie had sworn that at the time of the accident plaintiff avhs on the Avest side of the train, jumping on and off, and was not on the east side, seeking to cross to the Avest, as Avas alleged in the petition and had been testified to by plaintiff himself. This lad Avas asked if he had any conversation with plaintiff’s brother in January, 1899, at the St. Francis school, at Eighteenth and J streets, in Avhich plaintiff’s brother had asked Oddie if plaintiff was coming across the bumpers to the west side A\rlien he got hurt, and Oddie replied, “Yes.” Oddie’s ansAver to this question was : “I don’t remember of it.” Evidence was tendered to prove the conversation. It AAras objected to as not rebuttal, heax’say, incompetent, immaterial, irrelevant and no proper and sufficient foundation laid, the Avitness not having been asked such a question, and that the offer of the testimony Avas not made in conformity to law. This objection was sustained, and the evidence excluded. We have been unable to ascertain upon what principle this was done. It is claimed in the brief of the defendant in error that because the witness Oddie, in ansAver to the inquiry whether such a conversation occurred, had said he did not remember, it was not competent to prove it. We are cited in the brief to the cases of Meyer v. Stone, 21 Nebr., 717, and Railsback v. Patton, 34 Nebr., 490. These cases do not support the proposition. In each the testimony Avas by a party to, the action, and what he said was independent evidence in the nature of an admission, and in each case the, simple .question was whether or not a denial had been made of this substantive evidence. This court says in each case that an answer of no recollection is not a denial. But in both these cases it. was substantive, and not impeaching evidence, whose effect was xxnder consideration. The rule in reference to impeaching testimony, we had supposed,
For error in rejecting this impeaching evidence it is recommended that the judgment of the district court be reversed and the cause remanded for further proceedings.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.