92 Neb. 650 | Neb. | 1912
Plaintiff brought this action in the district court for Phelps county, to recover damages to his store building and merchandise, occasioned by the falling of a brick Avail of a building, being constructed by defendants, adjoining his building on the north. There Avas a verdict and judgment for defendants, and plaintiff appeals.
This action was brought against the lodge, its building committee, the independent contractor, and the contractor’s bondsmen. The amended petition alleges that the building was erected in an unskilful and negligent man
The answer of the defendant admits that, at the time of the injury complained of, he was engaged in the erection of the brick building referred to in plaintiff’s petition, and alleges that, “at the time of the injury complained of in plaintiff’s amended petition, there was an unprecedented wind-storm or hurricane that swept over the village of Bertrand and the adjacent country; that all of the injury alleged to plaintiff’s property by reason of the wall in process of construction by this defendant was occasioned by the act of God, and not by any negligence or default on the part of this defendant;” alleges, further, that the building was being constructed in a good, workmanlike manner; that the walls were well braced and anchored; and that every reasonable precaution was exercised by defendant to construct the building in a good, workmanlike manner; and denies all other allegations in the amended petition. The reply was a general denial. Plaintiff argues five assignments of error, which we will consider in their order.
1. “It is the duty of the trial court to state to the jury the issues on which they are to find. Reference to the
2. “Where, in an action for damages caused by a falling wall, the answer admits that the wall fell, and sets up an act of God as a defense, the burden of proof is on the defendant.” It is argued that the statement in the answer, “that all of the injury alleged to plaintiff’s property by reason of'the Avail in process of construction by this defendant Avas occasioned by the act of God,” is an admission that the wall fell and that plaintiff’s property Avas injured thereby, and is an attempt to avoid liability by pleading an act of God; that this issue makes out a prima facie case against the defendant, and that therefore the burden of proof Avas upon the defendant to establish his defense that the injury was caused by an act of God. It is further argued that instruction No. 2 and, to some extent, instruction No. 4 “are so worded as to lead the jury to believe that under the pleadings there was nothing for the defendants to do. The AArhole burden of proof is on the plaintiff. They entirely ignore the fact that the admissions of Ander
After having instructed the jury as to the allegations contained in plaintiff’s petition, and what it was necessary
Then followed instruction No. 11: “The court instructs you that by the defense which is styled in legal terms ‘the act of God’ is meant some inevitable accident which cannot be prevented by human skill and foresight, but results solely from natural causes, such as cyclones,, earthquakes, tempests, floods or inundations, and if you believe from the evidence that the injury to the plaintiff was occasioned solely by the wind-storm of unexpected and unprecedented violence, and not by any negligent act of the defendant in the construction of the building, then your verdict should be for the defendant.” The only objection which could be urged to instruction No. 11 is that it does not in express terms say that “the burden is upon the defendant” to prove the facts which the jury are therein told they must find in order to warrant their returning a verdict for the defendant. The most that can be said, therefore, is that the instruction is not sufficiently explicit. If the plaintiff desired a more explicit statement, he should have brought
3. “The frequent repetition of a proposition in the instructions of the court gives the same undue prominence, and is therefore error.” This assignment is based upon instruction No. 14, given by the court on its own motion, and instructions 10, 11 and .12, given at the request of defendant. The contention is that the court in ail four of those instructions told the jury that the defendant was not liable if they found the injury to the plaintiff’s building resulted from an extraordinary wind-storm, and not from the negligence of the defendant. As the court had covered that proposition quite fully in its instruction No. 14, it really was not necessary for it to have given the three instructions requested by defendant; but we are unable to see how the plaintiff was prejudiced by the court’s giving prominence to the fact that, in order to exonerate the defendant, the jury would have to find that the injury to plaintiff’s building resulted from an extraordinary windstorm, and not from the negligence of the defendant. Had the court given all four of those instructions upon its own motion and plaintiff had recovered a verdict, we can understand how defendant might have felt aggrieved at such repetitions; but they certainly could not have operated to plaintiff’s prejudice.
4. “It is the duty of a person building a brick wall close to the premises of another to so construct the same that it will withstand all gales which are reasonably to be expected in that locality. A wall which will merely withstand ordinary storms is not sufficient.” Upon this point, plaintiff complains of the action of the court in giving instruction No. 12, requested by defendant, and refusing instruction No. 4, requested by plaintiff. The objection to No. 12 is based upon this language in the instruction: “The court instructs the jury that, in the construction of
Finally: “The verdict is not sustained by the evidence, but is contrary thereto.” It would serve no good purpose to set out the voluminous testimony or to even attempt to give a synopsis of it here. It is sufficient to say that upon every material point it is conflicting, and is ample to sustain the verdict.
Affirmed.