Denise v. City of Omaha

• Decision Date: 02 December 1896
• Citation: 69 N.W. 119,49 Neb. 750
• Parties: DENISE v. CITY OF OMAHA.
• Court: Nebraska Supreme Court

49 Neb. 750

69 N.W. 119

DENISE

v.CITY OF OMAHA.

Supreme Court of Nebraska.

Dec. 2, 1896.

Syllabus by the Court.

1. Where an assignment of error refers in gross to a series of propositions embodied in separate paragraphs of the charge to the jury, it need be examined no further than to ascertain that any one of the series excepted to is sound.

2. Where alleged errors in the refusal to give several proffered instructions are grouped in the assignment, it does not require any further attention after it is ascertained that one of the propositions to which complaint is urged is correct.

3. To secure review of the action of a trial court in modifying a requested instruction to a jury, it is necessary to note an exception to such modification.

4. It is not ground for the reversal of a case that the trial court repeated a proposition of law in the instructions each time in proper connection with facts or other principles involved, or where it does not appear that the effect was to perplex or mislead the jury. Gran v. Houston, 64 N. W. 245, 45 Neb. 813.

5. Objections to instructions, to be available on review, must be specifically pointed out in a motion for new trial.

6. “The ruling of the trial court in sustaining an objection to a question put to one's own witness cannot 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.” Barr v. City of Omaha, 60 N. W. 591, 42 Neb. 341.

7. Alleged errors in the admission of evidence cannot be reviewed where no objection to its reception was interposed in the trial court.

8. The exclusion of offered evidence is not prejudicial error where the witness has previously given or subsequently gives the evidence sought to be introduced, or that of like character and to the same effect. Halbert v. Rosenbalm, 68 N. W. 622, 49 Neb. 498.

9. The action of a trial court in the admission of evidence will not be reviewed in the absence of any assignment in reference thereto.

10. Assignment in relation to the admission of certain testimony of the value of a lot, without considering in the estimate the improvements thereon. Held, that the evidence was competent, and the assignment unavailable.

11. The action of the trial court in sustaining objections to certain questions put to a witness for defendant on cross-examination examined, and held not erroneous.

12. Held, that there was sufficient evidence to support the verdict rendered.

13. Where it is sought to present to this court alleged errors occurring at the trial in the district court, to determine which involves an examination of matters which can only properly be presented by a bill of exceptions, such bill, settled and signed as prescribed by law, is indispensably necessary. Scott v. Spencer, 60 N. W. 892, 42 Neb. 632.

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

Action by Jacob C. Denise against the city of Omaha. From a judgment for defendant, plaintiff brings error. Affirmed.

Warren Switzler, for plaintiff in error.

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

HARRISON, J.

The plaintiff commenced this action in the district court of Douglas county, against the city of Omaha, to recover damages which he alleged in his petition were caused by the grading, by or under the directions and authority of defendant, of certain streets in the city, and adjacent to residence property owned by plaintiff, and on which he had a tenement house or houses. Issues were joined and tried, and the trial resulted in a verdict and judgment adverse to the plaintiff; hence the presentation of the case on his part to this court for a review of the proceedings in the district court.

One assignment of error was as follows: “The court erred in giving instructions on its own behalf numbered as follows: Two (2), three (3), four (4), five (5), six (6), seven (7), and eight (8).” Nos. 3 and 5 of the instructions to which reference was therein made were without error, and, as there was no separate and specific assignment, it needs no further examination. Pollock v. Whipple, 45 Neb. 844, 64 N. W. 210;Ripp v. Hale, 45 Neb. 567, 64 N. W. 454.

It is urged that the court erred in refusing to give instructions asked on behalf of the plaintiff, numbered as follows: “Three (3), six (6), seven (7), eight (8), nine (9), ten (10), eleven (11), and twelve (12), and in changing number four (4), and giving it as changed.” This assignment is not directed against the refusal to give any particular one of the instructions, but refers to all. Some of them were unobjectionable, and the proposition embodied in at least one of them had been fully covered by a paragraph of the charge given. Under such conditions, the assignment need not be further considered. Pollock v. Whipple, supra; Ripp v. Hale, supra.

In regard to the portion of the assignment which relates to the modification of the instruction numbered 4, requested by plaintiff, no exception was noted to the modification in the trial court; hence the objection is not available here.

It is argued that undue prominence was given, by the repetition in certain paragraphs of the instructions, of the proposition that, in order to recover, the plaintiff must produce a preponderance of the testimony. The idea expressed was entirely proper in the connection in which it appeared in the instructions, and, from a careful review of the record of the whole proceedings during the hearing in the trial court, we are constrained to believe that the portions of the instructions attacked were not open to the objection that they tended to mislead the jury. If they did not, there was no available error. Gran v. Houston, 45 Neb. 813, 64 N. W. 245;Hill v. State, 42 Neb. 503, 60 N. W. 916;Carstens v. McDonald, 38 Neb. 858, 57 N. W. 757;Seebrock v. Fedawa, 30 Neb. 424, 46 N. W. 650. Furthermore, the motion for new trial contained no specific complaint in respect to these instructions on the ground now urged, which would preclude an examination of the objection here. Barr v. City of Omaha, 42 Neb. 342, 60 N. W. 591.

There are several assignments which point to alleged errors in the exclusion of designated portions of the testimony. In respect to the majority of them, it suffices to say that no offer to prove the facts sought to be elicited by the questions to which objections were sustained followed such action, which renders the alleged...