81 Neb. 213 | Neb. | 1908
This is an action to recover damages for personal injuries suffered by the plaintiff while assisting in an attempt to move a threshing machine engine over a county bridge, and immediately occasioned by the falling of the bridge. The answer is a general denial qualified by a plea of contributory negligence. That the bridge was old and rotten and in a generally unsafe condition and had been so for several years, and that its condition had been for a long time well known to the county authorities and to the public generally, is proved by overwhelming evidence, and is admitted by counsel for the defendant, so that practically the only issue litigated on the trial was that of contributory negligence, concerning which the evidence i-s conflicting. The verdict and judgment were in favor of defendant, and plaintiff appealed. The court, at the re
The instruction also tells the jury: “And if you believe from the evidence of the plaintiff himself that the circumstances known and apparent to him, and immediately preceding and connected with the injury, as disclosed by plaintiff’s testimony, were such that a reasonably prudent and cautious man under like circumstances in the exercise of reasonable prudence and caution would have known, understood and discovered the danger of going upon the bridge where he was injured, then the plaintiff cannot recover.” This part of the instruction was erroneous for three reasons: (1) The effect of it was to tell the jury that plaintiff was bound to establish by a preponderance of the evidence that he was not guilty of con-
We think the rule is correctly announced in the second paragraph of the syllabus in City of Beatrice v. Reid, 41 Neb. 214, as follows: “If one attempts to pass over a place of danger, the law' requires him to exercise caution commensurate with the obvious peril; but this means that the law only requires of the party to exercise ordinary care, the danger and his knowledge thereof considered.-'' As was pointed out by this court in Rapp v. Sarpy County, 71 Neb. 882, contributory negligence is an affirmative defense, the burden of proving which is upon the party pleading it, and must be established, if at all, by a preponderance of the evidence pertinent to that issue contained in the whole record. When there is evidence of such negligence in the testimony of the plaintiff himself, unless it is of such nature as to amount practically to a confession, or is unqualified by his owm evidence or otherwise, it is for the jury to say whether it is explained or extenuated by other facts and circumstances established by the evidence, in such manner as to exculpate the plaintiff or to show' that his conduct wras not in fact contribu
Counsel for defendant insist that “the verdict of the jury was right, and was really the only verdict that could have been rendered under the overwhelming evidence of contributory negligence on the part of plaintiff.” We have examined the record with great care to see whether the judgment of the district court might not be affirmed on this theory; but we cannot so hold. Plaintiff testifies unqualifiedly that he did not know the dangerous condition of the bridge; that his attention had never been called to it; that he had no thought of any such thing that morning, or he would not have been on the bridge xvith that engine. He denies most emphatically the testimony of some of the other witnesses as to statements made by himself, at some of which interviews defendant’s own witnesses admit plaintiff’s father and mother were present; and the father and mother corroborate him in his denial. The testimony of the witness Wade that on the evening before the accident he told old man Folden, the owner of the engine, in the presence of the plaintiff and his father and two brothers, and a number of other men, that the bridge was not safe, that it was hardly safe for a ‘Vagón team” to cross, and that, “if you cross that bridge, you will not thresh tomorrow,” is met by the testimony of at least three witnesses that the plaintiff was not present at that interview at all, and had not been there at the latest' since noon of that day. The testimony of Mr. Colby shows that at least one, if not two, of the other witnesses testifying for defendant to the effect that plaintiff heard statements made as to the dangerous condition of the bridge at and prior to the accident had made entirely different statements to him. The testimony of the county judge, who at the time of the accident was deputy county attorney, shows that
For the errors above indicated, we recommend that the judgment he reversed and the cause remanded.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings in harmony therewith.
Reversed.