48 Neb. 65 | Neb. | 1896
Walter I. Martin sued tbe Ornaba Street Railway Company in tbe district court of Douglas county for damages wbicb be alleged be bad sustained by reason of tbe negligence of tbe employes of that company while attempting to board one of its cars. Martin bad a verdict and judgment and tbe street railway company prosecutes to tbis court a petition in error. i
1. Martin in bis petition alleged that tbe servants of
The first assignment of error argued in the brief is directed to the refusal of the district court to give certain instructions requested by the street railway company, and it is insisted that the court erred in refusing to give these instructions, as they embodied the law of the case applicable to the testimony given in support of its theory of the accident. The first of these instructions is as follows: “The jury are instructed that the plaintiff cannot recover in this action unless he satisfied you by a preponderance of evidence that the injuries received by him resulted from the negligence of the defendant company, and that the plaintiff was free from fault in the premises.” The court did not err in refusing to give this instruction. It was not incumbent upon the plaintiff to prove by a preponderance of the evidence that his injury was not the result of negligence on his part. If Martin proved by a preponderance of the evidence that he was injured, and that his injury was the result of the negligence of the street railway company, and, in mating these proofs, it was not disclosed that his injury was the result of his negligence, he made out his case. He was not required to prove by a preponderance of the evidence the negative proposition that his injury was not the result of his negligence. See Union Stock Yards Co. v. Conoyer, 41 Neb., 617, where the rule laid down in Anderson v. Chicago, B. & Q. R. Co., 35 Neb., 95, is quoted with approval, the rule being as follows: “In an action for negligence, where the plaintiff can prove his case without disclosing any negligence on his part, contributory negligence is a matter of defense, the burden of proving it being on the defendant.”
The second instruction is as follows: “The jury are instructed that if you find from all the evidence that the
The third instruction refused was as follows: “The jury are instructed that it was the duty of the plaintiff to wait until the train had come to a stop before attempting to get on board the car, and if yon find from the evidence that the train was being brought to a stop, and before the train had come to a full stop, the plaintiff attempted to get on the car and in so doing slipped and fell, then the plaintiff cannot recover and your verdict should be for the defendant” What has just been said in reference to instruction No. 2 disposes of the assignment that the court erred in refusing to give this instruction.
The fourth instruction refused was as follows: “The jury are instructed that in determining whether the plaintiff attempted to get on board the train before the train had come to a full stop, you should take into account not only the evidence of the defendant’s witnesses, but also such witnesses as were called by the plaintiff, if any, who testified that the train had not come to a full stop when the plaintiff attempted to get on board.” This was in effect asking the court to say to the jury: One of the matters being litigated here is whether Martin attempted to board the train while it was in motion. The defendant’s witnesses and some of Martin’s witnesses have testified that he did. You should consider the evidence of all these witnesses. It was the duty of the jury to consider all the evidence of all the witnesses. The jury was sworn to try the case according to the evidence, and we will not presume they did not, but Ave do not think the district court was under any obligation — if, indeed, such a course would have been proper — to single out one point being litigated and say to the jury: All the
Tbe fifth instruction refused, of which complaint is made, was as follows: “The jury are further instructed that tbe fact that tbe plaintiff was carrying a package as described by himself and other witnesses, was a circumstance requiring upon bis part a higher degree of care while attempting to get on board tbe train than if be bad not been burdened or incumbered by such package.” Tbe plaintiff was required to exercise ordinary care and nothing more. Tbe law requires every reasonable man to exercise caution commensurate with tbe obvious peril with which be is confronted, but tbis means no more than that be is under all circumstances required to exercise ordinary care, tbe danger and bis knowledge thereof considered. (City of Beatrice v. Reid, 41 Neb., 214.)
2. It is next argued that tbe court erred in giving to tbe jury instruction No. 8, as follows: “You are further instructed that if you find that plaintiff attempted to board tbe train while carrying a bundle in one band, and after it bad passed over tbe street intersection and while tbe train was in motion, and at tbe point where it was tbe duty of defendant’s employes to bring tbe train to a stop, as hereinbefore explained to you, and you further find that plaintiff received tbe injury complained of by reason of bis attempting to board tbe train while in motion, such act on tbe part of plaintiff would constitute contributory negligence on bis part, as it was bis duty not to attempt to board tbe train while it was in motion, carrying in one of bis bands a bundle, and be could not recover in tbis action unless you further find that an ordinarily cautious and prudent man, situated as plaintiff
Affirmed.