City of Chadron v. Glover

• Citation: 43 Neb. 732,62 N.W. 62
• Parties: CITY OF CHADRON v. GLOVER.
• Decision Date: 05 February 1895
• Court: Supreme Court of Nebraska

43 Neb. 732

62 N.W. 62

CITY OF CHADRON

v.GLOVER.

Supreme Court of Nebraska.

Feb. 5, 1895.

Syllabus by the Court.

1. To obtain a review of the rulings of the trial court on the admission and rejection of evidence, the petition in error must specifically designate the rulings complained of.

2. This court will not review the action of the trial court in giving and refusing instructions,

unless the record discloses an exception to the ruling complained of.

3. The failure of the trial court to mark instructions “Given” or “Refused” cannot be complained of here, unless an exception was specially taken in the trial court on the ground that the instructions were not so marked.

4. In September a deposition of a witness residing in a distant state was taken on behalf of the plaintiff, on due notice, the defendant serving cross interrogatories, as provided by the Code. The officer who took the deposition, instead of transmitting it to the clerk, transmitted it to the plaintiff's attorney, and the deposition was never filed. On December 3d plaintiff served another notice of the taking of the deposition of the same witness on December 20th. No cross interrogatories were served, and the witness was not cross-examined. Held, that the court properly overruled a motion to suppress the deposition, based on the failure of the notary to propound the cross interrogatories served on the former occasion.

5. Whether it is proper in an action for personal injuries for the court to appoint, on the application of the defendant, a commission of physicians to make a physical examination of the plaintiff, quaere. If such action is proper, the application must be made before the trial commences.

6. An assignment in the petition in error that the court erred in overruling the motion for a new trial is too indefinite for consideration, where the motion for a new trial assigns several different grounds therefor.

7. The disability of a married woman to maintain an action in her own name was removed by the married woman's act, and she may maintain an action for personal injuries, recovering therein the damages by her sustained, as distinguished from any sustained by the husband.

8. Such right of action being her own, she is not estopped by her husband's acts in regard thereto.

9. Where a city permits a sidewalk to be maintained beyond the sidewalk line as fixed by ordinance, and exercises control thereover, its duty is to maintain the whole walk in repair.

10. Section 80, c. 14, Comp. St., does not require a claim for personal injuries to be presented to the city council of a city of the second class, as a condition precedent to maintaining an action.

Error to district court, Dawes county; Kinkaid, Judge.

Action by Eliza J. Glover against the city of Chadron. Judgment for plaintiff, and defendant brings error. Affirmed.

Spargur & Fisher, for plaintiff in error.

C. Dana Sayrs and A. W. Crites, for defendant in error.

IRVINE, C.

The defendant in error recovered a judgment against the plaintiff in error for $500, on account of injuries sustained by the defendant in error in consequence of falling on a defective sidewalk. Counsel in the brief discuss many questions relating to the evidence and to the instructions. The assignments of error are, however, of such a character that but few of these questions can be considered.

The fourth, fifth, and sixth assignments of error are as follows: “(4) The court erred in admitting in evidence and in overruling the motion of defendant to strike out the testimony of Dr. A. Lewis, witness for plaintiff. (5) The court erred in the admission of evidence upon behalf of plaintiff over the objection of defendant. (6) The court erred in excluding evidence and exhibits offered by defendant.” Each one of these assignments is too vague to permit a review of the rulings of the court upon the evidence. To obtain such review, the precise ruling complained of should be specifically pointed out. Lynan v. McMillan, 8 Neb. 135; Graham v. Hartnett, 10 Neb. 517, 7 N. W. 280;Birdsall v. Carter, 11 Neb. 143, 7 N. W. 751;Cook v. Pickrel, 20 Neb. 433, 30 N. W. 421;Lowe v. City of Omaha, 33 Neb. 587, 50 N. W. 760;Kroll v. Ernst, 34 Neb. 482, 51 N. W. 1032;Gregory v. Kaar, 36 Neb. 533, 54 N. W. 859;Farwell v. Cramer, 38 Neb. 61, 56 N. W. 716;Hanlon v. Railway Co., 40 Neb. 52, 58 N. W. 590;Cortelyou v. Maben, 40 Neb. 512, 59 N. W. 94.

The assignments relating to the instructions are as follows: “(7) The court erred in refusing to give the instructions requested by defendant, and in neglecting to mark such instructions ‘Refused.’ (8) The court erred in giving the instructions upon his own motion, and in failing to mark such instructions ‘Given.’ (9) The court erred in giving instructions asked by plaintiff, and in neglecting to mark them ‘Given.’ ” Such language is too indefinite, unless the ruling of the trial court was erroneous as to all the paragraphs in each group. Birdsall v. Carter, supra; Hiatt v. Kinkaid, 40 Neb. 178, 58 N. W. 700;McDonald v. Bowman, 40 Neb. 270, 58 N. W. 704;Jenkins v. Mitchell, 40 Neb. 664, 59 N. W. 90;Murphy v. Gould, 40 Neb. 728, 59 N. W. 383;Armann v. Buel, 40 Neb. 803, 59 N. W. 515;Berneker v. State, 40 Neb. 810, 59 N. W. 372;Hewitt v. Banking Co., 40 Neb. 820, 59 N. W. 693. Moreover, the record discloses no exception to any instruction given or requested. The failure to except prevents a review. Scofield v. Brown, 7 Neb. 221; Heldt v. State, 20 Neb. 492, 30 N. W. 626;Billings v. Filley, 21 Neb. 511, 32 N. W. 567; Railroad Co. v. Starmer, 26 Neb. 630, 42 N. W. 706;Darner v. Daggett, 35 Neb. 695, 53 N. W. 608;Association v. Mordock, 39 Neb. 413, 58 N. W. 107;Rector v. Canfield, 40 Neb. 595, 58 N. W. 1131. Other cases might be cited on all the foregoing points.

As to that part of the assignments of error which relates to the failure of the court to mark the instructions “Given” or “Refused,” it is sufficient to say that no request was made to the court to so mark them, and no exception was taken to the failure of the court to do so. In the absence of an exception specially taken on the ground that the instructions are not so marked, the failure of the court in that particular cannot be complained of here. Trust Co. v. Hansen, 32 Neb. 449, 49 N. W. 456.

The first assignment of error relates to the overruling of a motion of the plaintiff in error to suppress the deposition of one D. F. Van Lehn, and the second assignment is directed against the admission of the deposition in evidence. It seems from the proof offered in support of the motion to suppress, and of the objection to the admission in evidence of the deposition, that a deposition of the witness was taken in Fair Haven, Wash., September 18, 1890, in pursuance of proper notice. On that occasion the defendant city had served cross interrogatories, as provided by section 378 of the Code of Civil Procedure. The notary, instead of transmitting the deposition to the clerk, transmitted it to plaintiff's attorney, and the deposition was never filed. On December 3, 1890, another notice was served by the plaintiff to take the deposition of the same witness at the same place, on the 20th of December, 1890. No cross interrogatories were served, and the deposition then taken was the one received in evidence. The trial took place in April, 1891. The ground on which it was sought to exclude the deposition was that the defendant was entitled to the benefit of its cross-examination, and that counsel supposed that the object of the second notice was merely to procure a copy of the deposition, which had been missent, and that the cross interrogatories would be propounded to the witness. Counsel had no right to so suppose. The notice was to take a new deposition. Ample time was allowed for the city to make the necessary preparations. The statute provided a method of having cross...