23 Neb. 662 | Neb. | 1888
The cause was before this court on the record of a former-trial in the district court of Dixon county, when the judgment was reversed and the cause remanded for further proceedings, in case reported in 18 Neb., p. 551.
From the record now before us, it appears that, upon the
There -was a new trial to a jury, 'which found for the plaintiff in the sum of $950. Defendant’s motion for a third trial being overruled, plaintiff had judgment, and defendant again brings the cause to this court on error, assigning the following errors:
First. That the verdict is not sustained by sufficient evidence..
Second. That the verdict is contrary to law.
Third. For error of law occurring at the trial, duly excepted to.
Fourth. The damages are excessive, appearing to have been given under the influence of passion or prejudice.
Fifth. For misconduct of the jury in this, to-wit: That
' Sixth. The court erred in refusing to give the sixth and seventh instructions asked for by defendant.
Seventh. The court erred in giving instructions number one, two, three, four, five, six, seven, eight, nine, ten, and eleven, asked for by plaintiff.
Eighth. The court-erred in giving instructions number one and three, on its own motion.
Ninth. There were irregularities in the proceedings, in this, that said jury arrived at its verdict by adding twelve several amounts each, one given by each juror, and dividing the aggregate amount therefor, to-wit, $11,400, by twelve, and thus getting the sum of $950, which said last sum the said jury adopted and presented to the court as its . verdict.
The first, second, and fourth assignments will be considered together. Under this head counsel for plaintiff in •error, in their brief, insist that the facts, as stated by the plaintiff in his testimony at the trial, disclose contributory negligence on his part which should prevent his recovery. 'The act of the plaintiff, suggested as constituting contributory negligence, is that of not turning back and abandoning his walk along the sidewalk and street, when he discovered that the sidewalk did not continue on the same unbroken level. Whether a person of ordinary care and prudence, of the knowledge of and acquaintance -with the streets and sidewalks of a village, or the want of either, which the plaintiff was shown to have possessed, would have turned ■back and abandoned his purpose in proceeding along the street on ascertaining that there was an apparent break in
As to the point raised by the first denial in the answer of defendant, its corporate existence at the date of the negligence complained of, the corporate existence de facto of the village of Ponca, at least since the year 1876, was sufficiently proved to sustain the verdict; such being the case, the erroneous admission of evidence tending to prove the regular incorporation of the village, even if such there' was, would be error without prejudice.
As to the third assignment, it is sufficient to say that no error of law, occurring at the trial, is pointed out in the brief for our consideration.
The fifth and ninth assignments are to be considered together, that, for the misconduct and irregularities of the jurors-in retirement, in marking down the damages respectively as a dividend, taking their own number as a divisor, and returning the quotient as their verdict, they acted improperly, and that a new trial ought to be granted, is to be considered in the sole light of the evidence of the jurors, Miller, Paul, and Bottorff, who disclosed the fact. On examination, they testified “that no agreement was made, prior to marking down the respective amounts, that the result should be their decision and constitute their verdict, but that several votes were afterwards taken, and that the marking down was not binding.”
It has been held, with a large concurrence of opinion, that a showing that a verdict thus ascertained, without previous agreement to be bound by the’result, is not alone sufficient to invalidate the finding [Barton v. Holmes, 16 Iowa, 252), and that if the .specified means is adopted merely for the sake of arriving at a reasonable measure of damages, without binding the jurors by the result, it is no objection to the verdict. [Dana v. Tucker, 4 Johns., 487.)
In a like instance, in the case of Harvey v. Jones, 3 Humph., 157, it was held that a jury may make the ex-
In the case of Dunn v. Hall, 8 Blackf., 32, the court say that, “the law is well settled that in actions for unliquidated damages the jury may adopt the process ’resorted to in this case, adding the amounts and dividing by twelve, to obtain a medium sum to be submitted as a proposition for a verdict; and it is equally well settled that it must not be adopted pursuant to an agreement to be bound by its result.” The impropriety of this practice of addition, division, and the quotient, as a measure of damages, consists not in the method, nor the sum of the result, but in the prior agreement to be bound by it; and for the reason that this verdict is within the rule of propriety, and not obnoxious to it, the fifth and ninth assignments are overruled.
As to the sixth, seventh, and eighth assignments of errors of the court in refusing the sixth and seventh instructions offered by defendant, in giving the eleven instructions offered by plaintiff, and the first and third of its own motion, it is sufficient to state that in the former review of this case it was held that the rule as to proof of written instruments and records does not include oral testimony of the existence of such instruments and records, preliminary to their introduction or proof of loss; that the order of admitting evidence w7as discretionary with the court, and that an error on the trial without prejudice or disadvantage to the plaintiff in error was not one of sufficient gravity to reverse the ..judgment. These views are repeated; they dispose of the remnants of the case. The judgment of the district court is affirmed.
Judgment affirmed.