Mannion v. Talboy
| Decision Date | 03 May 1906 |
| Docket Number | 14,288 |
| Citation | 107 N.W. 750,76 Neb. 570 |
| Parties | JOHN MANNION v. W. R. TALBOY |
| Court | Nebraska Supreme Court |
ERROR to the district court for Dixon county: GUY T. GRAVES, JUDGE. Reversed.
REVERSED.
W. E Gantt and George W. Argo, for plaintiff in error.
McCarthy & McCarthy and John V. Pearson, contra.
DUFFIE C. ALBERT and JACKSON, CC., concur.
The plaintiff, Mannion, in his petition filed in the district court, alleges that on or about September 15, 1899, he was lawfully standing on the sidewalk on the west side of Louis street and near the east side of a store building occupied by one Hoy, in the village of Newcastle, Dixon county, Nebraska; that the defendant, Talboy, without any notice or warning to plaintiff, and unlawfully, wrongfully and maliciously, with force and violence, pushed and shoved a man, whose name plaintiff has been informed is John Coleman, against and on the plaintiff, causing plaintiff to be thrown violently into a narrow hole in said side-walk and against said brick store building aforesaid; that in his fall the plaintiff's left foot and leg went down into the said hole, while his right foot and leg remained on the sidewalk; that he was severely and permanently injured thereby; that his head struck against the side of the brick building with such force and violence that his left ear and ear drum were permanently injured and the hearing thereof affected; that his back and spine were permanently injured, and other severe and permanent bodily injuries sustained. The answer admits that the plaintiff was standing on the sidewalk, and that he stepped or slipped into a hole or opening in the walk. It denies every other allegation in the petition contained. Defendant further alleges that plaintiff was, at the time of the injury complained of and for a long time prior thereto had been, suffering from the effects of disease and of injuries with which the defendant had no connection; that for a long time prior to the injuries complained of plaintiff had been suffering from afflictions such as are described in his petition; that the same were the result of disease and injuries sustained long prior to the time of the accident described in the petition; that plaintiff was never in any manner injured or damaged in stepping or slipping into the hole in the walk. A second defense raised the question of the plaintiff's contributory negligence; and a third defense is pleaded to the effect that any damage or injury sustained by the plaintiff was the direct and proximate result of the carelessness and negligence of a third person, not the servant or agent of the defendant, and without any fault or negligence of any kind on the part of the defendant. A reply put in issue the affirmative matters set out in the answer. A trial resulted in a verdict for the defendant, and from a judgment entered on the verdict the plaintiff has taken error.
Exceptions are taken to the eighth instruction of the court which is in the following language: "You are instructed that if you believe from the evidence that...
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