Barr v. City of Omaha

• Decision Date: 17 October 1894
• Citation: 42 Neb. 341,60 N.W. 591
• Parties: BARR ET AL. v. CITY OF OMAHA.
• Court: Nebraska Supreme Court

42 Neb. 341

60 N.W. 591

BARR ET AL.

v.CITY OF OMAHA.

Supreme Court of Nebraska.

Oct. 17, 1894.

Syllabus by the Court.

1. The allowing an amendment to a pleading, so as to make it conform to the evidence received without objection, is a matter largely within the discretion of the trial court, and this court will not interfere with the exercise of such discretion unless the record presents a clear case of abuse.

2. To make available an error in giving an instruction that does not fully state the issues in a case, the party complaining must properly request a full and complete instruction upon the point.

3. Unless the record shows that an instruction was excepted to in the trial court when given, the instruction will not be reviewed by this court.

4. Objections to the giving or the refusing of instructions will not be considered by the supreme court unless presented to the trial court by the motion for a new trial.

5. The ruling of the trial court in sustaining an objection to a question put to one's own witness canot be reviewed where the complaining party has failed to make an offer of the testimony, indicating what he expects to prove by the witness in response to the question propounded and overruled.

6. The exclusion of evidence of a fact fully established by other competent and uncontradicted evidence is not reversible error.

7. “The special benefits which may be properly set off against damages are such as increase the value of adjacent property, and these benefits are none the less special because an increased value has been thereby added to many adjacent private properties other than that to which a particular litigation is pending. Common benefits are such as are enjoyed by the public at large, without reference to the ownership of private property adjacent to the public improvement out of which arose the benefits under consideration.” Kirkendall v. City of Omaha, 57 N. W. 752, 39 Neb. 1.

8. A verdict on conflicting evidence will not be disturbed unless manifestly wrong.

9. Evidence held to sustain the verdict and judgment.

Error to district court, Douglas county; Keysor, Judge.

Action by Emily C. Barr and others against the city of Omaha. Judgment for defendant, and plaintiffs bring error. Affirmed.Moriarty & Langdon, for plaintiffs in error.

W. J. Connell and E. J. Cornish, for defendant in error.

NORVAL, C. J.

This action was brought by the plaintiffs in error against the city of Omaha to recover damages to their lot because of street improvements. There was judgment for the city, dismissing the action, and plaintiffs prosecute error.

The plaintiffs are, and they have been for several years, the owners of lot 20 of the S. E. Rodgers Oklahoma addition to the city of Omaha, and lived in the residence situated upon said lot. The premises are situated on the east side of Thirteenth street, and south of Blain street, in said city. In March, 1889, the city of Omaha passed an ordinance establishing the grade of said Thirteenth street along and in front of plaintiff's lot, whereby the grade of said street was raised several feet above the natural surface of said lot. In May, 1889, an ordinance was passed authorizing and directing the grading to the established grade of said Thirteenth street along and in front of plaintiffs' real estate, and for several blocks north and south thereof; and during the years 1889 and 1890 said portion of said street was brought to the established grade, and, by reason thereof, plaintiffs' lot was left some 12 feet below the surface of the street. Plaintiffs claim that by reason of said grading, and the negligent and careless manner in which the work was done, they have sustained damages.

The first point raised by plaintiffs in their brief, as a ground for reversal, is based upon the ruling of the trial court in permitting the city to file an amended answer. In the original answer, special benefits had not been pleaded as a defense. The case, however, was tried by both parties, and testimony was admitted without objection upon the theory that the question of special benefits was in issue in the case. After the evidence was all in, and plaintiffs' counsel was making the opening argument to the jury, counsel for the city asked permission to file an amended answer to conform to the facts proven, by setting up special benefits, which request was granted by the court, and an amended answer was filed, over the objections and exceptions of plaintiffs. It was clearly within the discretion of the court to permit the amendment. Our statute, and practice thereunder, as is shown by the decisions, are very liberal in allowing amendments, and especially where the object is to make the pleading correspond with the proofs. The allowance of an amendment of a pleading either before or after judgment is a matter almost entirely within the discretion of the trial court, and this court will not interfere with the exercise of such discretion in permitting a pleading to be amended to conform to the evidence admitted without objection, unless the record presents a clear case of abuse. Keim v. Avery, 7 Neb. 54; Catron v. Shepherd, 8 Neb. 308, 1 N. W. 204;Brown v. Rogers, 20 Neb. 547, 31 N. W. 75;Klosterman v. Olcott, 25 Neb. 382, 41 N. W. 250. This record discloses no abuse of the power of the court. No objection was made to the admission of the testimony when received. It is not very clear that the evidence respecting special benefits was improperly admitted under the original answer, moreover, if plaintiffs were taken by surprise by the amendment, their remedy was to make the fact appear to the court, and it would doubtless have protected their rights by granting a continuance. But no postponement of the trial was asked.

It is contended on behalf of plaintiffs that there was prejudicial error in the paragraph of the instructions which states the issue in the case, in that it omitted to state that the allegations of special benefits in the answer were denied by the reply, and that the instruction failed to inform the jury that one of the issues which they were called upon to try was whether the work of grading was performed by the city in a negligent manner or not. It is not claimed that there was a misstatement of the issues, but that the statement was not full enough. The question of negligence in the construction of the work was fully covered by the paragraph alluded to. Plaintiffs cannot predicate error in the giving of this instruction on the ground that it did not comprehend or state every issue in the case, for two reasons: First, the plaintiffs did not present to the trial court an instruction covering the point omitted from the instruction given. Had this been refused, the plaintiffs would be in a position to have the question reviewed. Post v. Garrow, 18 Neb. 688, 26 N. W. 580;Klosterman v. Olcott, 25 Neb. 387, 41 N. W. 250;Woodruff v. White, 25 Neb. 753, 41 N. W. 781;Burris v. Court, 34 Neb. 190, 51 N. W. 745. Another reason why the paragraph of the charge already mentioned cannot be considered is that no exception was taken to the giving thereof when the same was read to the jury. An exception at the time an instruction is given is necessary, in order to have an objection to such instruction noticed or considered by the court. Warrick v. Rounds, 17 Neb. 415, 22 N. W. 785;Heldt v. State, 20 Neb. 499, 30 N. W. 626;Nyce v. Shaffer, 20 Neb. 509, 30 N. W. 943; Scofield v. Brown, 7 Neb. 221; Downing v. Glenn, 26 Neb. 323, 41 N. W. 1119; Railroad Co. v. Meeker, 28 Neb. 94, 44 N. W. 79;Holloway v. Schooley, 27 Neb. 553, 43 N. W. 346.

Criticisms are made in the brief of plaintiffs upon instructions numbered from 3 to 10, inclusive, given by the court on its own motion. None of these instructions can be reviewed by us for the reason that neither of them was brought to the attention of the court below in the motion for a new trial. Repeatedly this court has said, in effect, that, where no objection is made to an instruction in the motion for a new trial, such instruction cannot be considered on a review of the cause in the appellate court. Schreckengast v. Ealy, 16 Neb. 514, 20 N. W. 853;Weir v. Railroad Co., 19 Neb. 213, 26 N. W. 627;Nyce v. Shaffer, 20 Neb. 509, 30 N. W. 943; Railroad Co. v. O'Donnell, 22 Neb. 475, 35 N. W. 235;Sherwin v. O'Connor, 24 Neb. 605, 39 N. W. 620.

It is insisted that the court erred in refusing certain instruction requested by plaintiffs. We must decline to review plaintiffs' requests to charge, inasmuch as the same were not pointed out in the motion for a new trial. Railroad Co. v. Walker, 17 Neb. 435, 23 N. W. 348, and cases last above cited.

Some 19 different rulings of the trial judge in excluding testimony offered by the...