Denise v. City of Omaha, 6886

• Court: Supreme Court of Nebraska
• Writing for the Court: HARRISON, J.
• Citation: 69 N.W. 119,49 Neb. 750
• Parties: JACOB C. DENISE v. CITY OF OMAHA
• Docket Number: 6886
• Decision Date: 02 December 1896

69 N.W. 119

49 Neb. 750

JACOB C. DENISE
v.
CITY OF OMAHA

No. 6886

Supreme Court of Nebraska

December 2, 1896

ERROR from the district court of Douglas county. Tried below before DAVIS, J.

AFFIRMED.

Warren Switzler, for plaintiff in error.

W. J. Connell and E. J. Cornish, contra.

OPINION [69 N.W. 120]

[49 Neb. 751] 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 [49 Neb. 752] 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. 341, 60 N.W. 591.)

There are several...