Syllabus by the Court.
1. Whether an injury is directly caused by an act, or the former arises or flows from the latter proximately or naturally, is a practical question, rather than a theoretical one.
2. A person whose safety is imperiled by the negligent act of another, if injured in a reasonable and prudent attempt, under the conditions and circumstances, to escape the threatened danger, may recover from the negligent one damages for the injury.
3. Whether the negligence and peril had existence, and the attempt to avoid the latter was prudent and reasonable, are usually questions of fact for the determination of a jury.
4. Assigned errors of the giving designated instructions, and refusals of others, held without force.
Error to district court, Dodge county; Marshall, Judge.
HARRISON, C. J.
The petition filed in this case read as follows: “The said plaintiff complains of the said defendant for on or about the 23d day of December, 1894, the said defendant recklessly, negligently, and wrongfully, with force and violence, threw and thrust some large and heavy planks or boards into a room in the Eno Hotel in the city of Fremont, Nebraska, then used and occupied by plaintiff as a guest at said hotel, and plaintiff, without any fault or negligence on her part, in trying to avoid and escape from physical injury, of which she was in imminent danger from the violence and wrongful act of defendant as aforesaid, dodged, and made a sudden move backward and to one side, and thereby wrenched, sprained, and otherwise hurt and injured her right knee, and the muscles, ligaments, tendons, and other parts thereof, so that she became and was sick, sore, lame, and unable to attend to her ordinary affairs for the space of about one month, to her damage in the sum of $100, and was compelled to employ a physician at an expense of $15, and to pay for her board and lodging, care and nursing, at said hotel, the sum of $100. Plaintiff further says that her injuries so received as aforesaid are of a permanent nature, and her physical vigor and bodily strength are impaired, and will be during her natural life, and she will continue to suffer, as she has suffered heretofore, great mental anguish and bodily pain from the same; that she is a poor woman, dependent on her earnings as a working girl for her support, and by reason of said injuries her capacity for earning a living has been very much diminished, to her damage, in all, in the sum of five thousand dollars, for which sum, with costs of suit, she claims judgment against said defendant.” The answer was a general denial. A trial of the issues resulted in a judgment for the complainant, to reverse which is the purpose of a proceeding in error to this court.
When, during the trial, it was announced that the defendant in error rested her case, counsel for plaintiff in error moved an instruction to find for plaintiff in error “for the reason that no recovery can be had in law in this case for the reason that it appears from the evidence that the injury complained of is not the approximate or reasonably to be expected result, and that the result was a mere accident in law.” This was refused, and that it was is of the errors alleged and argued. It is disclosed by the evidence that the defendant in error and her sister were at the Eno Hotel in Fremont, this state, and about 11 o'clock p. m. of December 23, 1894, went to their room in the hotel, and what further occurred will as well appear from portions of the evidence, which we will quote. The defendant in error testified as follows: “Now, go on; just state what transpired. A. Well, we lit the lamp, and my sister got ready for bed, and I was almost ready for bed. I heard my sister scream. I looked up to the transom, and saw a large board sticking up through the transom,--about two feet, I think it was; and I walked over to the door, to see if I could see anybody in the hall. Of course, we could not leave the board there all night. Mr. Ellick was standing in the hall. I closed the door, and locked it again, and pretty soon I heard Mr. Ellick laugh, and he said ‘I will take the board down, girls;’ and, instead of taking the board down, he shoved it on into the room. I was standing by the washstand. It was right over my head. The board kind of tottered, and I stepped one side, and fell. I thought the board was going to hit me. Q. Well, what then? A. I fell, and I fainted after I fell down, and my sister threw some water in my face, and helped me to bed, and I stayed in bed a few minutes. ...
