O'Dell v. Goodsell
| Decision Date | 03 February 1950 |
| Docket Number | No. 32629.,32629. |
| Court | Nebraska Supreme Court |
| Parties | O'DELL v. GOODSELL et al. |
O'DELL
v.
GOODSELL et al.
No. 32629.
Supreme Court of Nebraska.
Feb. 3, 1950.
Lucille O'Dell, as administratrix of the estate of Judd Marion O'Dell, deceased, sued Tilden A. Goodsell, sheriff of Dakota County, and another for the death of plaintiff's intestate as the result of a fire while he was a prisoner in the county jail.
From a judgment of the District Court of Dakota County, Jackson, J., for defendant, plaintiff appealed.
The Supreme Court, Simons, C. J., held that an instruction to the jury that the statutes do not require the sheriff to maintain a constant guard over prisoners in the county jail to prevent them from harming themselves was not erroneous, that the evidence was sufficient to take to the jury the question of deceased's contributory negligence in use of matches which caused the fire, and that admission of defendant sheriff's testimony as to general customs of permitting prisoners to smoke in penal institutions and not permitting fire extinguishers in jail quarters was not error.
Judgment affirmed.
Yeager, Boslaugh and Messmore, JJ., dissented.
[41 N.W.2d 125]
1. Instructions are to be considered together to the end that they may be properly understood and, when so construed, if as a whole they fairly state the law applicable to the issues presented by the pleadings and the evidence in support thereof, error cannot be predicated on the giving of the same.
2. In order to present for review the failure of the trial court to instruct the jury upon particular issues or evidence in a case, the party complaining must have requested instructions on the omitted topics.
3. When a general denial is interposed to a pleading, coupled with and followed by admissions, the denial yields to the admissions to the extent thereof.
4. This court will dispose of a case on appeal on the theory on which it was presented to the trial court by the parties.
5. A party who requests a trial court to give instructions framed upon a certain theory cannot be heard to complain that the court gave other instructions proceeding upon the same theory.
6. The presumption of due care arising out of the natural instinct of self-preservation is not evidence, but a mere rule of law, and obtains only in the absence of direct or circumstantial evidence justifying reasonable inferences one way or another upon that subject; when such evidence is produced the presumption disappears and is not entitled to be considered.
7. The admission of cumulative evidence is ordinarily within the discretion of the trial court and its ruling thereon will not be held erroneous unless it clearly appears that such discretion has been abused.
8. A general objection, if overruled, cannot avail the objector on appeal. The only modification of this broad rule is that if on the face of the evidence, in its relation to the rest of the case, there appears to be no purpose whatever for which it could be admissible, then a general objection, though overruled, will be deemed to have been sufficient.
9. Where there is a general objection of no proper foundation laid, if there is some particular respect in which the
[41 N.W.2d 126]
proof of foundation is lacking, the trial court's attention should be specifically directed thereto by the party making the objection.
10. Upon the issue of negligence or contributory negligence, evidence of the ordinary practice or of the uniform custom, if any, of persons in the performance of acts under similar circumstances like those which are alleged to have been done negligently is generally competent evidence.
Carlos Goltz, Sioux City, Iowa, George W. Leamer, So. Sioux City, for appellant.
Warner & Warner, Dakota City, John E. Newton, Ponca, Cook & Cook, Fremont, Mark J. Ryan, So. Sioux City, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
SIMMONS, Chief Justice.
This is an action for damages resulting from the death of plaintiff's intestate while a prisoner in the county jail in custody of the defendant Goodsell, sheriff of Dakota County. Issues were made and trial was had resulting in a directed verdict for defendant. In O'Dell v. Goodsell, 149 Neb. 261, 30 N.W.2d 906, 909, we reversed the judgment and remanded the cause because of error in failing to submit issues of negligence of defendant sheriff to the jury and in dismissing plaintiff's action. The cause again was tried resulting in a verdict for the defendant. Plaintiff appeals. We affirm the judgment of the trial court.
Herein we use the designation ‘defendant’ with reference to the defendant sheriff.
The plaintiff's first assignment of error is that the trial court erred in giving the following instruction to the jury: ‘The Statutes of Nebraska do not require the sheriff or jailer to maintain a constant guard over prisoners incarcerated in the County Jail for the purpose of preventing them from harming themselves either deliberately or accidentally.
‘The only provision of the statute with reference to the maintenance of a constant guard at county jails applies to a situation when the condition of the mail (sic) is such as requires a constant guard to prevent the escape of prisoners.’
Plaintiff contends that this instruction states that the only requirement of a guard is to prevent the escape of prisoners. Obviously, the instruction does not so state. It sets out what the statutes do and do not require with reference to maintenance of a constant guard. It is not contended that there is a statute requiring the sheriff to maintain a constant guard over prisoners so there appears to be no error in the statement in the first sentence of the instruction. The second sentence obviously refers to that part of section 47-113, R.S.1943, which provides that when the condition of the jail requires a constant guard to be kept to prevent the escape of prisoners, the sheriff shall be allowed pay for guarding or procuring guard. There appears to be no error in the statement in the second sentence of the instruction.
But plaintiff argues that the jury could have concluded from the instruction that a guard not being required by statute, the defendant had no duty to exercise due care in the premises, and hence the instruction amounted to one to find for the defendant.
In our opinion in the former appeal we referred to some of the statutory duties of the sheriff and said: ‘Beyond statutory requirements a sheriff is bound to exercise in the control and management of the jail the degree of care requisite to the reasonably adequate protection of the prisoners or inmates.’ Obviously the jury should have been instructed as to the duties other than statutory of the defendant.
The rule is: ‘Instructions are to be considered together to the end that they may be properly understood and, when so construed, if as a whole they fairly state the law applicable to the issues presented by the pleadings and the evidence in support thereof, error cannot be predicated on the giving of the same.’ Fimple v. Archer Ballroom Co., 150 Neb. 681, 35 N.W.2d 680, 682.
[41 N.W.2d 127]
Before giving the challenged instruction, the court instructed as to the duties of a sheriff or other police officer to arrest and detain under the provisions of sections 29-401 and 29-410, R.S.1943. The court likewise instructed as to the duties of the sheriff as jailer under the provisions of section 23-1703, R.S.1943. The court instructed as to the statutory duties of the county board to provide a jail and keep it in repair under section 23-120, R.S.1943, and that those duties did not devolve upon the sheriff. The trial court then gave the challenged instruction, followed by this instruction: ‘The provisions of the statute with reference to the duties of a sheriff in the supervision and confinement of prisoners placed in his custody are not the only ones to be observed in order that his conduct fulfills his duties of exercising reasonable care. It is a fundamental rule of action that he shall exercise reasonable care under the circumstances, considering all surrounding conditions of which he has knowledge or by the exercise of reasonable care would have knowledge.’
The plaintiff does not contend that there is error in the other instructions mentioned above. Taking the group as a whole it is patent that the trial court instructed as to statutory duties, those duties not, or only partially, covered by statute, and those duties other than statutory. When so considered we see no merit in the assignment.
Plaintiff's next assignment of error is that the court erred in not following the mandate of this court in the previous appeal. Specifically, reference is made to those provisions of the opinion that it was error to refuse to submit to the jury (1) the failure of the sheriff to provide a guard for the jail and the proper inferences to be drawn from such failure; (2) the question of the adequacy of ventilation under the circumstances; (3) the failure to make outside communication available and the proper inferences to be drawn therefrom; and (4) the question of whether or not the sheriff failed to respond to his duty in the light of the potential for danger which he knew or should have known.
As to (1) and (2), plaintiff alleged that the defendant left no guard in or about the jail in charge of the prisoners, and that the defendant failed to provide proper ventilation. The trial court specifically submitted these two questions to the jury as claimed acts of negligence with an instruction elsewhere as to the burden of proof of negligence in one or more of the respects alleged, and stated that the jury could consider the logical and proper inferences deducible therefrom. As to (3), we find no specific allegation in plaintiff's petition that defendant was negligent for failure to make outside communication available. We do find an allegation that he did not provide proper fire protection. That allegation of negligence also was submitted to the...
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