Floaten v. Farrell

• Decision Date: 03 July 1888
• Citation: 38 N.W. 732,24 Neb. 347
• Parties: FLOATEN v. FARRELL.
• Court: Nebraska Supreme Court

24 Neb. 347

38 N.W. 732

FLOATEN

v.FARRELL.

Supreme Court of Nebraska.

July 3, 1888.

Syllabus by the Court.

Alleged errors of law occurring at the trial, in the exclusion of certain evidence, examined and overruled.

In an action by G. F. against A. H. F. for the negligent driving and management of a team of horses let for hire by G. F. to A. H. F., by means of which the team was driven upon a barb-wire fence and injured, and where there was no evidence tending to connect G. F. in any manner with the existence of such fence, held not error on the part of the trial court to refuse to give instruction to the jury tending to make the existence of such fence across the road an excuse or justification to A. H. F. for the injury.

Upon the trial of such cause, held to be within the legal discretion of the trial court to give or withhold from the jury questions for special findings of fact.

Error to district court, Greeley county; HARRISON, Judge.

Action for damages by George Farrell against A. H. Floaten, defendant. Judgment for plaintiff. Defendant brings error.T. J. Doyle, for plaintiff in error.

H. G. Bell, for defendant in error.

COBB, J.

The defendant in error sued the plaintiff in error in the district court of Greeley county. The cause of action, or principal one, set out in the petition, and the one upon which the contention arises, is damage to the mare of the defendant in error let for hire to plaintiff in error, which damage was caused by the alleged negligently driving the team, of which the said mare constituted a part, into and upon a barbed-wire fence, by means of which said mare was injured. The cause was tried to a jury, which found for the plaintiff below, and, allowing certain set-offs, assessed his damages at the sum of $26.78, for which judgment was rendered, with costs. The plaintiff in error makes the following assignments of error in this court: “(1) The court erred in sustaining objections of defendant in error, and excluding from the jury, the following question and answer, found on page 38 of bill of exceptions, viz.: ‘You may state, with reference to the character of the road here and of the night, whether that is not a road that would lead any one into this wire fence, with the exercise of ordinary and proper care? Answer If I had been driving it would have led me in there. Certainly, that is a road that the team would keep.’ (2) The court erred in sustaining objection of defendant in error to the following question, found on page 49 of bill of exceptions: ‘ Question. You may state how you were driving on this particular occasion, as to prudence and care.’ (3) The court erred in sustaining objection of defendant in error to the following question propounded to L. J. Sloan, witness for plaintiff in error, found on pages 57 and 58 of bill of exceptions, viz.: ‘From the location of this road, the manner in which the fence was placed across it, was it or was it not very dangerous to travel at that time?’ (4) The court erred in sustaining the objection of defendant in error to the following question propounded to L. J. Sloan by plaintiff in error, found on page 59 of bill of exceptions, viz.: ‘Well, Doctor, did you ever have any trouble and difficulty at this point,--that is, in the way of running into a wire fence?’ (5) The court erred in sustaining objection of defendant in error to the following question of plaintiff in error propounded to P. J. Hurley, witness for plaintiff in error, found on page 74 of bill of exceptions, viz.: ‘You may state if you have any special knowledge of your own which causes you to know that a team coming from Spaulding would take that course.’ (6) The court erred in refusing to give paragraphs Nos. 1 and 2 of the instructions asked by the plaintiff in error. (7) The court erred in refusing to submit to the jury special findings Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 asked by the plaintiff in error. (8) The court erred in overruling the motion for a new trial. (9) The verdict is contrary to the evidence.” It appears from the bill of exceptions that, on the 24th or 25th day of July, A. H. Floaten (defendant below) hired from George Farrell, (plaintiff below,) who was a livery man, a covered carriage and team, consisting of two horses,--a mare and a gelding,--for the purpose of driving from Scotia, the place of residence of the parties, to Albion and return, expecting to be gone about three days. He took with him on said trip, in said carriage, Byner, Lanagan, and T. J. Doyle. Returning from Albion, they stopped for supper at Spaulding, and were by means detained, so that they did not resume their journey until near nightfall. For awhile Doyle drove the team; but it being somewhat dark, and he being unacquainted with the road, and as Lanagan knew the road better, they changed there, and Lanagan drove. As they approached near to O'Connor, they came to where the road had been changed, in consequence of a barbed-wire fence, inclosing the cemetery, having been built across the old road, where the driver, mistaking the old and abandoned track for the new track, leading to...