Denise v. City of Omaha

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

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

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. 341, 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 errors unavailable.(Barr v. City of Omaha, 42 Neb. 341, 60 N.W. 591.)One of the questions as to which the above mentioned objection was urged was numbered 444.To this, it appears by the record, no objection was interposed.

A hypothetical question was asked one of the witnesses for plaintiff, and was "objected to as assuming facts not proven."The objection was sustained, and to this action an exception was noted.The question was not open to the objection made and sustained, but immediately following this the witness was further interrogated on the same line, and the information expected in reply to the rejected interrogatory was thereby elicited, hence there was no prejudicial error.(Halbert v. Rosenbalm, 49 Neb. 498, 68 N.W. 622.)

It is urged in the brief filed for plaintiff that there was error in overruling an objection made for plaintiff to question numbered 533 propounded to a witness for defendant.There was no assignment of error in respect to this, hence it will not be considered.

It is contended that the trial court erred "in admitting the testimony of any of the real estate men called by defendant as they did not take into account, in giving their opinions, the improvements on the property.See, for instance, Mr. Hascall's testimony, questions 679 and 696, and Mr. Ames'No. 745.Others were to the same effect."No objection...