Stephenson v. Flagg

41 Neb. 371 | Neb. | 1894

Ryan, C.

On March 6, 1889, there was filed in the district court of Douglas county the petition of Ada E. Flagg, against James Stephenson and Cornelius F. Williams, partners doing business under tbe firm name of the Omaha Cab.Company. The damages claimed were alleged in the petition to have been sustained by plaintiff having been struck and injured while driving on Douglas street in Omaha, and that the collision was caused by the negligence of defendants, through the fault of the driver of one of the defendants’ Hansom cabs. The petition at length described the nature of the injuries sustained by plaintiff, and closed with a prayer for judgment in the sum of $5,241 and eosts. The answer was an admission of the existence of the partnership alleged as existing between defendants, their ownership of a Hansom cáb, and a denial of every other allegation of the petition, closing with an averment that whatever injury had been sustained by plaintiff was entirely owing to her own carelessness. There were returned two verdicts, upon the first of which no judgment was rendered. On the trial which followed the setting aside of the first verdict there was a second verdict for plaintiff. Judgment was rendered on this last verdict for $2,000, for the reversal of which the defendants filed their petition in error in this court, accompanied by a proper transcript and bill of exceptions.

The first contention of plaintiffs in error is that there was no sufficient evidence to sustain the verdict. The evidence urged as wanting is that which would show that the injuries described on the trial had in February of 1891 were traceable to the accident which occurred April 7, 1887. If there had been no evidence save that of the expert physicians produced by the plaintiffs in error, this argument would be entitled to consideration. After all, this very .evidence was not positive as to the relation of cause and effect. It was full as to present ailments and the manifestations attending them, but when the cause was inquired into it was with the result that the injury sustained might have been the original inception of Mrs. Flagg’s present suffering, or they might have arisen from other causes. It is not difficult to believe that the uncertainty developed by the examination of these expert witnesses was caused by the lapse of almost three years after the occurrence of the accident, before their examination of the defendant in error. These witnesses admitted that the ailments described on the trial by Mrs. Flagg might have resulted from the accident of which she made complaint in her petition. On the other hand, there was abundant evidence to sustain the verdict of the jury: First, as to the good health of Mrs. Flagg before April 7, 1887; and, second, as to the change in her health following upon the injury, and that it was of such nature as to be reasonably imputed to it. There was detailed in evidence the history of her ease, showing the gradual development of new and unfavorable symptoms, until were reached the results described on the trial. This class of testimony was given, not only by herself, her mother, and her husband, but by her attendant physicians as well. It may be pertinently observed in this connection that from the time of her injury until the trial in February of 1891, Mrs. Flagg seemed almost constantly to have been under medical treatment. The evidence was amply sufficient to justify the verdict in not only this, but in every other respect.

No other errors alleged in the petition in error are argued, except criticisms are made of the instruction.given, and of those refused. Of those given of the court’s own volition there is argued error only as to the use of the word “carelessness” in the fourth paragraph. As this assignment of error was as to Nos. 5 and 6, as to which no criticism is even attempted coupled with No. 4, we cannot consider the error urged as inhering in No. 4 alone. The petition in error alleged that the court erred in giving paragraphs Nos. 1, 2, 3, 4, 5, 10,11,12, and 13 at the request of the defendant in error. As might well be supposed, there would be no error found in each one of these several paragraphs, and this assignment requires us tó prosecute inquiry no farther than this point.

There is assigned error in the petition in error, in that the court refused to give paragraphs numbered 5 and 6 of the instructions asked by plaintiffs in error. Of these paragraphs, that numbered 5 required the jury to find against the defendant in error, if, at the time of the accident, she wás on the north or left-hand side of Douglas street, provided that if she had been on the other side of said street the accident would not have happened. We know óf no réason for such a radical statement of the law as this would require, and no attempt has been made in argument to show one. The fifth and sixth paragraphs of the instructions asked by the plaintiff in error were, therefore, properly refused. The judgment of the district court is

Affirmed'.