86 Neb. 528 | Neb. | 1910
.In the city of Red Cloud, on the night of October 20, 1906, plaintiff fell down an open, unliglited stairway leading from a public sidewalk in a street to the basement of a private building and was severely injured. He subsequently sued the city for resulting damages for personal injuries on account of its negligence and recovered a verdict for |2,000. From a judgment in his favor for that sum defendant has appealed.
Plaintiff: alleged in his petition that defendant was a city of the second class having less than 5,000 inhabitants, but at the trial did not adduce proof in support of that allegation. In addition to a general denial, the ansAver stated that defendant Avas a municipal corporation, but did not state the class of cities to wliicli it belonged. The court gave an instruction Avhicli permitted plaintiff to recover without proof that defendant Avas a city of the second class haAing less than 5,000 inhabitants and Avithout proof that he filed his claim with the city clerk before
The points are not well taken, for the following reasons : Proof that Red Cloud was a city of the second class having a population of less than 5,000 was unnecessary. The trial court Avas at liberty to take judicial notice of that fact and to frame its instructions to conform thereto. Hornberger v. State, 47 Neb. 40; Union P. R. Co. v. Montgomery, 49 Neb. 429. When plaintiff was injured, defendant’s charter did not require him to file his claim with the city clerk, or give the city notice of his injuries, as a condition of his right to maintain his suit. Other statutes containing such requirements did not apply to the city of Red Cloud. Proof of actual notice of the dangerous stairway in the sidewalk was not essential to plaintiff’s right to recover damages, because there Avas undisputed evidence that such a condition had existed for a length of time sufficient to charge the city with notice. City of Lincoln v. Smith, 28 Neb. 762.
Complaint is also made because the trial court failed to instruct the jury as to the burden of proof, the Aveight of evidence, and the credibility of witnesses. Defendant is not entitled to a reversal on this ground, for these reasons : After stating the issues raised by the material allegations of the pleadings, the trial court instructed the jury that the burden of proof Avas on plaintiff to convince them, by a fair preponderance of all the evidence, of the truth of every material allegation in his petition, before; he could recover. Plaintiff’s witnesses were not im
Error is also assigned in the giving of the following instruction: “The defendant in its answer alleges that the plaintiff was guilty of contributory negligence, in this: That plaintiff at the time of the injury was in an intoxicated condition, and that the injury was caused by reason of the condition of the plaintiff, and not being the result of any fault or negligence on the part of the defendant city. The defendant has offered no evidence in support of this allegation of its answer, and you will not consider it in arriving at your Verdict.” In the argument this instruction is challenged because it withdrew from the consideration of the jury the issue as to plaintiff’s intoxication and consequent negligence. The instruction was properly given. The record contains no evidence whatever that plaintiff was intoxicated when injured, or at any other time, or that he ever drank intoxicating liquors of any kind.
Another argument is directed to assigned errors in the following instruction: “If you find from the'evidence and these instructions that the plaintiff is entitled to recover, it will then be your duty to find and ascertain from the evidence the amount to which he is entitled. You should carefully consider all of the evidence as to the nature, character, and extent of the injury, and the result, whether the disability, if any, resulting from the injury was permanent or temporary, its extent, either total or partial. If any permanent disability, you should consider plaintiff’s age, his reasonable expectance of life, how much money he could earn before the injury, and how much, if any, he could earn after the injury, with his reduced
This instruction was evidently taken from a charge approved in City of Lincoln v. Holmes, 20 Neb. 39. The language noAV criticised is as folloAAs: “You are further instructed that you should allow him for pain and suffering. The law lays doAvn no rule for estimating his damages on account of pain and suffering, but leaves it to your sound discretion and judgment.” It is argued that this language puts no restriction on the amount of plaintiff’s recovery, and that the instruction does not even limit the jury to the damages claimed by plaintiff in his petition. The trial court in other parts'of the charge directed the jury, in substance, that plaintiff claimed damages in the sum of $2,000 on account of pain and suffering, and that his entire claim was $1,025; that he could only recover the amount of actual damage sustained, if any, as compensation for the injury received; that they must ascertain from the evidence the amount to which he is entitled; that the amount of damage on account of pain and suffering AAas left to their sound discretion and judgment. The damage, as found by the jury, was less than half of plaintiff’s claim. For these reasons, defendant was not prejudiced by the instruction criticised.
Other assignments of error relate to rulings of the trial court in admitting evidence. Over defendant’s objection, one Avitness was permitted to testify that plaintiff “was a good hand when he lived in Iowa.” It is'unnecessary
The action of the trial court in overruling an objection to the folloAving question, Avhich had been propounded to a physician Avho testified as a Avitness for plaintiff, is also criticised as erroneous: “Noav, from an examination of this patient, and from having treated him from time to time, and from your experience as a physician, what Avould you say as to Avhether the patient Avill entirely recover from the injury, or as to whether it is, or may be, a permanent injury to his hearing, and to his ear generally?” The argument seems to be that.the question invites the witness to speculate on the future result of the injury, and Carlile v. Bentley, 81 Neb. 715, is cited to sustain defendant’s position. Whether defendant was prejudiced by the ruling on the objection to this question depends upon the ansAver, Avhich is as follows: “Why, my opinion is that he has got a condition there that may last for some time—indefinitely; possibly during life. That would be my idea, although I think the condition is amenable to treatment. I should think it could be somewhat improved if he would take a course of treatment; but it would be impossible for me to tell just what the result would be. It might be very bad. He might lose
Defendant has not pointed out a prejudicial error, and the judgment will be
Affirmed.