78 P. 410 | Kan. | 1904
The opinion of the court was delivered by
An action was brought by Emil Werner against the St. Louis & San Francisco Railroad Company to recover damages for an alleged diminution in the value of his property, caused by the construction of a railroad on a city street in front of the property. The railroad company answered that the building of the road in the street was legally and properly done, and that it did not interfere with ingress to, or egress from, the property, and occasioned the
Plaintiff moved for a new trial, assigning all the statutory grounds, including the one last mentioned in section 806 of the code(Gen. Stat. 1901, §4754), to wit: “Error of law occurring at the trial, and excepted to by the party making the application.” The motion was overruled as to all the grounds stated, but because of the instruction authorizing the jury to counterbalance damages suffered with benefits received the court granted a new trial. In disposing of the motion the trial «court remarked that there was evidence in the case justifying the giving of the instruction, if it had been a correct statement of the law, but held that the instruction was not a correct declaration of the law, and granted a new trial for that reason alone.
It appears from the record, however, that the instruction in question, as well as the entire charge, was given to the jury without objection or exception. Can a party sit by and listen to the giving of an instruction without objection or exception, and, after the case has been fully submitted and an adverse verdict returned, obtain a new trial because of the giving of such instruction ? We think not. A new trial may be allowed only on the grounds specified in the statutes. The giving of an erroneous instruction is
It was held in Sovereign Camp v. Thiebaud, 65 Kan. 332, 69 Pac. 348, that a trial court cannot set aside a verdict and grant a new trial arbitrarily and without reason; and, it may be added, it can never be done except for a statutory reason. In Publishing House v. Heyl, 61 Kan. 634, 60 Pac. 317, it was held that statutory remedies and methods supersede previously existing ones, and, the legislature having provided a method for obtaining a new trial, a party desiring one must conform to the prescribed requirements. Since the plaintiff took no exception to the instruction given, he is deemed to have acquiesced in it; and, assuming that it was erroneous, the lack of exception made the error unavailable and afforded no ground for setting aside the verdict and granting a new trial. (Darrance v. Preston, 18 Iowa, 396; Valerius v. Richard, 57 Minn. 443, 59 N. W. 534; Hayne, New Trial & App. §§ 7, 127.)
To overcome this omission plaintiff calls attention