Lincoln v. Gillilan

• Decision Date: 15 September 1885
• Citation: 24 N.W. 444,18 Neb. 114
• Parties: LINCOLN v. GILLILAN.
• Court: Nebraska Supreme Court

18 Neb. 114

24 N.W. 444

LINCOLN

v.GILLILAN.¹

Supreme Court of Nebraska.

Filed September 15, 1885.

Error from Lancaster county.

Ricketts & Wilson, for plaintiff.

Sawyer & Snell, for defendant.

REESE, J.

The original action was instituted by defendant in error against plaintiff in error, for the purpose of recovering damages alleged to have been sustained by him by reason of a defect in one of the public streets in the city of Lincoln. The allegation of the petition is, and the proof shows, that on the evening of the eleventh day of November, 1882, while defendant in error was riding along the street, his horse stepped into a mud-hole or wagon rut and fell, throwing defendant in error upon the ground, and breaking his leg.

The first proposition contended for by plaintiff in error is that the testimony “establishes, beyond any controversy, the existence of such facts as render defendant in error guilty of contributory negligence, as a matter of law, and therefore the trial court erred in submitting the case to the jury.” To this we are unable to agree. It appears that a week or 10 days before the accident defendant in error saw the defect in the street; but there is no proof of his having seen it afterwards. It was his custom to ride from his home, east of the city, to his place of business, using for that purpose a horse, or colt, three years old the spring before. The proof is that the horse was gentle and sure-footed. On the evening in question, some time after dark, he mounted the horse to go home. The night was quite dark, and a storm was approaching from the north-west. He allowed his horse to go at a “lope,” selecting its own part of the street. The speed at which the horse traveled was not rapid; a witness testifying that he kept opposite to him while running along the sidewalk. Defendant in error was familiar with the street, having traveled it almost daily until a short time before the accident. Applying to these facts the rule of law adopted in Atchison & N. R. Co. v. Bailey, 11 Neb. 332, S. C. 9 N. W. Rep. 50, we think it was clearly right for the trial court to submit the case to the jury. In that case, Judge COBB, in writing the opinion, quoted with approval the following language from Railroad Co. v. Stout, 17 Wall. 657, viz.: “Upon the facts proven in such cases, it is a matter of judgment and discretion, of sound inference, what is the deduction to be drawn from undisputed facts. Certain facts we may suppose to be clearly established, from which one sensible, impartial man would infer that proper care had not been used and that negligence existed; another man, equally sensible and equally impartial, would infer that proper care had been used and that there was no negligence. It is this class of cases and those akin to it that the law commits to the decision of a jury. * * * It is assumed that twelve men know more of the common affairs of life than does one man; they can draw wiser and safer conclusions from admitted facts, thus occurring, than a single judge. In no class of cases can this practical experience be more wisely applied than in that we are considering. We find, accordingly, although not uniform or harmonious, that the authorities justify us in holding, in the case before us, that although the facts are undisputed, it is for the jury, and not for the judge, to determine whether the proper care was given, or whether they established negligence.”

In the case at bar the trial judge submitted the question of contributory negligence to the jury, with instructions for their guidance, and in this we think there was no error. Plaintiff in error requested the court to instruct the jury as follows: “(4) The plaintiff was bound to exercise ordinary care for his personal safety while passing along the street of the defendant, and if the jury believe from the evidence that plaintiff's slight negligence, if any, contributed directly to the alleged injury, then you will find for the defendant.” This instruction was given as prayed. It then requested the court to give the following instruction: “(7) If the jury believe from the evidence that there was a slight want of ordinary care on the part of the plaintiff, which slight want of ordinary care contributed to the injuries complained of, the plaintiff cannot recover, unless the jury further find the negligence on the part of the defendant was so gross as to justify the jury in finding that the alleged injury was caused by the willful and malicious act of the defendant, or its agents or servants.” The court refused to give this instruction, and this refusal is assigned as error.

Without stopping to inquire as to whether or not these instructions were applicable to the case, we will be content with a comparison of the two. If there is any appreciable difference between “slight negligence,” as used in the first of the above instructions, and a “slight want of ordinary care,” as used in the second, we are wholly unable to see that difference, and will assume that they mean substantially the same thing. The first instruction informs the jury that if the “slight negligence” of defendant in error contributed directly to the injury they should find for the plaintiff in error. This virtually excluded all consideration of the negligence of the plaintiff in error, whether slight or gross. The proposition was short, but clearly stated. If defendant in error contributed to the accident by “slight negligence” he could not recover, however negligent the plaintiff in error might have been. The second instruction is virtually a reiteration of the first, with the qualification or limitation that would destroy the force of the instruction if the jury should find that plaintiff in error had been guilty of the gross negligence mentioned. Had the court refused to give the first, and had given the second, there might have been a question, as the limitation did not exist in the first. But as the first contained all, in favor of plaintiff in error, that was in the second, we see no cause for complaint. If there was error it was without prejudice. If an instruction is once given it is sufficient, and it is not error for the trial court to refuse to repeat it to the jury. Kopplekom v. Huffman, 12 Neb. 100; S. C. 10 N. W. Rep. 577.

Plaintiff requested the trial court to give the following instruction to the jury: “The jury is instructed that a city is not liable to respond in damages because of every depression or inequality in the surface of its streets, even though injury result therefrom. It is only liable when it fails to keep its streets in a reasonably safe condition for public travel, and it is not necessary that it should keep the entire width of its streets in good condition for travel, unless the public convenience and travel demands it; and if you find from the evidence that a sufficient width of the street, at the point of the alleged injury, was in a reasonably safe condition for public travel, and that the plaintiff could have...