*1 502 opinion, only portion

tiff’s of it minor was referred to impeachment. applies Section R. 1943, R. S. as it to this 25-1215, provides: declaration, “When con- act, writing given party, versation or one subject may inquired the whole be into the other.” The admission of evidence sec- under this is, within area reserved to the tion sound discretion Spani Whitney, trial 550, court. N. W. 2d 103. introduction of the invited the written can find and we no abuse discre- statement the trial court in determining that the rest of tion subject.” the “same There was statement prejudicial ruling. no error the trial court’s assignments fully explored all of

We have error properly assigned by plaintiff. contentions' We prejudicial in the error entered find trial the trial court is court the defendant. The in favor of Rogers, William Impleaded al.,

Inc., appellees, with corporation, corporation, N. W. March Filed

Larry McGroarty Welch of *2 Weinberg appellee for Fiedler,

Alfred Fiedler of Rogers. Tierney, Adams,

Cassem, Henatsch & Gotch Gross, and Day, appellees Vinardi, Schatz & Kaufman, for Navajo Freight Lines, Inc., al.

Heard before White,, Newton, J. personal for is to recover alleges injured by Plaintiff he was reason employees of the defendants Bee Line Freight Navajo Freight Lines, Inc. Verdict plaintiff against were for Bee Line Motor Navajo Freight defendant Inc. We affirm the of the district court.

Plaintiff truck driver Graves Truck Line. operated by He called at the dock defendant, and sole appellant, freight to load employer. employed by driver, Another truck Nav- ajo Freight parked by Lines, Inc., close engaged loading weighing heavy approxi- crate pounds mately 1,000 and which dimensions was about Navajo feet 1 foot. The feet driver was be- 4% ing assisted dock foreman, render- being ing ap- of his duties. It pears to be custom for the drivers to also assist one requested. men another when two were unable to further assistance load the crate without fore- plaintiff’s help. Adjacent requested large man away, over 6 to inches crate, not was another crate weighing containing pounds. a radiator and about 180 requested to assist as moved Plaintiff with the Navajo lifting pushing, pulling driver foreman dolly, to lift with end, and the front partially truck. At moved into the the crate was containing radiator fell over and crate time the measured This crate about fractured feet by 1 foot. feet 4% the crate fall is caused what as to The The evidence front end said the driver circumstantial. large The fore- either side. did not move to crate an inch may have moved two. rear end man said tipped over that the crate indicative This is not heard two stated he one, the small together other reasonable pieces and no hit wood falling. explain explanation crate offered allege does claim not did not dangerous condition a defect or the result of dan- was due in defendant’s premises. activity His gerous carried on simply foreman was that the defendant’s contention failing negligent lookout, maintain a *3 keep, crate to control over the to exercise striking other one, and to use small the it from moving equipment the crate. machinery in available a case Contrary contention, this to defendant’s being injured defendant’s on invitee of a licensee governing cases, under the rules negligence. involving ordinary simple The rather refusing defend- instruct to in trial court was immaterial theory. eliminate “A trial court should ant’s jury by to in- superfluous the matters .submit properly only it in be decided to matters structions Patrick, 167 Neb. arriving Bezdek v. at its verdict.” 181 Neb. See, Clark also, 482. N. 754, 94 W. 2d 425. 461, 149 N. W. relating manner in of the

In view to find are occurred, we constrained accident the which relating presented the jury question to was that charge of on the and the of the' foreman. of acting also the foreman that .contends

Defendant employment scope of his outside the agent Navajo became Navajo’s of he assisted driver. when testimony argument undisputed indicates must fall. to the foreman’s duties assist that loading heavy objects he drivers in both request the assistance were accustomed to the drivers of engaged In to the other drivers. load he crate, employer’s the is true business and in his plaintiff’s his he solicited further when employer’s “For acts done all servant business. express orders or directions the obedience to business, master, execution of the master’s or in scope employment, his for acts within the authority express implied sense warranted considering him, the nature the serv- conferred given, required, the instructions ices .circum- done, the act is the master stances under which Niemeyer Forburger, responsible.” 112 W. 2d 276. N.

Finally, the court erred sub- it is contended that permanent mitting question Plaintiff’s only expert He medical called. conceded doctor was injury any permanent X-rays not reveal could that judgment, joint that, in his ankle but testified injury percent permanent a 10 sustained findings fact after his that based to one He slightly displaced set, it became been fracture had damage fact on the could cause which complained pain years, plaintiff still after 3 testimony only swelling ankle. This except subject, relative question pre- appears jury was also condition, it *4 point is correct. the instruction on this sented appearing, of the district court No error J., dissenting. Carter, proof The burden of action damages negligence prove by prepon- based on negligence derance of the evidence the of the defendant employee. negligence or, in this its No act of or duty part employee breach of of defendant’s proved, majority opinion shown any does the recite Freight, Inc., such on the Bee Line employees. Surely happening its mere of an acci- proof dent, under shown, the circumstances here anyone. I submit that proof action fails for want basis exists submitting jury. for judgment to a I would reverse

and dismiss the basis prove failed to a cause of action. joins in this dissent. Spencer, Nebraska, State v. Neal 184 N. 2dW. Filed March Reddish, T.

Albert Meyer, Attorney Clarence General, and Melvin appellee. Kammerlohr, K. J.,

Heard before White, and