Emel v. Standard Oil Co., 26332.
| Court | Supreme Court of Nebraska |
| Writing for the Court | PROUDFIT |
| Citation | 220 N.W. 685,117 Neb. 418 |
| Parties | EMEL v. STANDARD OIL CO. |
| Docket Number | No. 26332.,26332. |
| Decision Date | 06 July 1928 |
117 Neb. 418
220 N.W. 685
EMEL
v.
STANDARD OIL CO.
No. 26332.
Supreme Court of Nebraska.
July 6, 1928.
[220 N.W. 685]
The amendment to the petition set forth in the opinion held to introduce a new cause of action, barred by the statute of limitations, and the allowance of such amendment is erroneous.
An instruction on the law of comparative negligence that informs the jury that, “if you find from the evidence that each was guilty of an equal degree of negligence, or that the negligence of the deceased was greater than that of
[220 N.W. 686]
the defendant, then you should in either event return a verdict for the defendant,” held, under the facts and circumstances, not erroneous, but criticized as not being as full a statement of the law of comparative negligence as the defendant was entitled to have submitted to the jury.
An instruction informing the jury that, in arriving at the measure of damages in a personal injury suit, they may take into consideration the need of assistance on the part of the person or persons to be benefited by a favorable verdict, held to be erroneous.
Evidence examined, and held insufficient to support a verdict for the plaintiff.
Appeal from District Court, Kearney County; Dilworth, Judge.
Action by William H. Emel, administrator of the estate of Johnson A. Emel, deceased, against the Standard Oil Company. Judgment for plaintiff, and, from an order overruling a motion for a new trial, defendant appeals. Reversed and dismissed.
C. P. Anderbery, of Minden, and W. H. Herdman, of Omaha, for appellant.
King & Bracken, of Minden, and E. B. Perry, of Lincoln, for appellee.
Heard before GOSS, C. J., ROSE, GOOD, THOMPSON, and HOWELL, JJ., and REDICK and PROUDFIT, District Judges.
PROUDFIT, District Judge.
This is an action brought by the administrator of a decedent, who sues to recover damages alleged to have been sustained by the death of plaintiff's intestate, and is its second appearance in this court. At the former hearing the case was argued before Division No. 2 of the Supreme Court Commission, a judgment of reversal resulting therefrom. After the filing of the opinion by the commission, the plaintiff sought to amend his petition in this court and leave so to do was denied. The case was remanded to the district court for further proceedings. Upon the second trial of the action in the district court leave was obtained to amend paragraph 4 of the petition over the objection of the defendant. Paragraph 4 of the original petition alleged:
“That on said 28th day of August, 1922, said Robert Blackburn, while so in the employ of defendant, and while driving said oil truck loaded with oil and gas, again carelessly, negligently and wrongfully invited and permitted said Johnson A. Emel to enter upon said truck, as had been his custom, for the purpose of accompanying him on a trip distributing oil and gas; that at said time the said Johnson A. Emel, without fault or negligence on his part, fell from said truck to the ground and the wheels of said truck passed over his body, and on account thereof he sustained an injury from the effects of which he died on said same day.”
Said paragraph 4 as amended alleges:
“That on said 28th day of August, 1922, said Robert Blackburn, while so in the employ of defendant, and while driving said oil truck loaded with oil and gas, again carelessly, negligently and wrongfully invited and permitted said Johnson A. Emel to enter and ride upon said truck, as had been his custom, for the purpose of accompanying him on a trip distributing oil and gas; that defendant, by its employee and servants, after having invited plaintiff's decedent to ride on defendant's said truck and while well knowing that said child intended to and was about to take hold of and mount said moving truck, thus having ample time, failed to bring said truck to a stop and failed to warn deceased not to attempt to mount said truck, although there was...
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Susman v. Kearney Towing & Repair Ctr., S-21-277
...Anthony K. v. Nebraska Dept. of Health & Human Servs., 289 Neb. 540, 855 N.W.2d 788 (2014). [11]See Emel v. Standard Oil Co., IllNeb. 418, 220 N.W. 685 (1928). [12] See, Henderson v. Forman, 240 Neb. 939, 486 N.W.2d 182 (1992); Condon v. A. H. Robins Co., supra note 5; Westover v. Hoover, 9......
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Patterson v. Kerr, No. 28930.
...where the controlling issues in the case are the matters of negligence and contributory negligence. In Emel v. Standard Oil Co., 117 Neb. 418, 220 N. W. 685, 687, after criticizing the instruction there given on comparative negligence, this court said: “It may well be said in passing that t......
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Schrage v. Miller, No. 27858.
...any damages against the defendant.” This instruction is similar to that given by the trial court in the case of Emel v. Standard Oil Co., 117 Neb. 418, 220 N. W. 685, and which met with the approval of this court. Under the facts and circumstances this instruction is not erroneous, because ......
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Abbott v. Abbott, No. 37321
...Limitations of Actions § 281, p. 336; Streight v. First Trust Co. of Omaha, 13 Neb. 340, 275 N.W. 278 (1937); Emel v. Standard Oil Co., 117 Neb. 418, 220 N.W. 685 (1928). More recently we have specifically affirmed [185 Neb. 183] the rule. Tennyson v. Werthman, 167 Neb. 208, 92 N.W.2d 559 (......