79 Neb. 431 | Neb. | 1907
This was an action to recover damages for injuries suffered by the plaintiff’s minor son by riding into a barbedivire fence which the defendant had constructed across a traveled way upon his own land, without first putting up sufficient guards to prevent such accidents. There Avas a trial to a jury, and a verdict and judgment for the plaintiff, from which the defendant appeals.
1. The defendant moved to require the plaintiff to set out in his petition “whether or not there was a new road and plainly traveled track at the place where the road liad been changed to after the fence Avas built.” The overruling of this motion is assigned as error. This was a matter of defense, and the ruling of the district court Avas clearly right.
2. At the beginning of the trial the defendant objected to the introduction of any testimony in the case on the ground that the plaintiff’s petition did not state a cause of action. The petition alleges, in substance, that the defendant was the owner of certain land upon which there was a plain traveled wagon road that was used by the public generally, and that on about the 1st day of November he erected a barbed-wire fence across said road, thereby obstructing the road and preventing travel along it, and wrongfully, carelessly and negligently failed to
3. At the close of the plaintiff’s testimony the defendant asked the court to direct a verdict in his favor, and its refusal to do so is assigned as error. We have carefully read the testimony in the case, and are satisfied that there is testimony which would warrant the jury in finding against the defendant, and that this request was properly denied.
4. The remaining assignments of error are directed to certain paragraphs of the instructions of the court. In instruction No. 5 the provisions of the above quoted sections were given to the jury as being the law of this state,
5. The only remaining errors urged are the exceptions of the defendant to the instructions concerning the measure of damages in which he claims that the jury should have been told that it was incumbent upon the plaintiff to show, not only the reasonable value of the services of the son, but to prove that he could have earned the same. There is no merit in this contention. When the fair value of services has been shown, it is not necessary to prove that he had contracted for or could have actually secured employment.
There is no error in the record, and we recommend that the judgment of the court below be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.