Morrison v. Scotts Bluff County

• Decision Date: 13 March 1920
• Docket Number: 20848
• Citation: 177 N.W. 158,104 Neb. 254
• Parties: AMOS C. MORRISON, APPELLEE, v. SCOTTS BLUFF COUNTY, APPELLANT
• Court: Nebraska Supreme Court

177 N.W. 158

104 Neb. 254

AMOS C. MORRISON, APPELLEE, v. SCOTTS BLUFF COUNTY, APPELLANT

No. 20848

Supreme Court of Nebraska

March 13, 1920

APPEAL from the district court for Scotts Bluff county: HANSON M GRIMES, JUDGE. Reversed.

REVERSED.

L. L Raymond and Robert G. Simmons, for appellant.

Wright Mothersead & York, contra.

MORRISSEY, C. J. DAY, J., not sitting.

OPINION

MORRISSEY, C. J.

Plaintiff recovered a judgment for injuries to himself and damages to his automobile because of alleged negligence on the part of defendant in failing to keep a bridge and highway in proper repair. Defendant appeals, assigning as error the giving of instructions Nos. 4, 5, and 6 by the trial court.

Instruction No. 4, after quoting section 7892, Rev. St. 1913, reads as follows: "In this case, if under the evidence you find that defendant was negligent, and that you should find for plaintiff, you should first determine what sum will compensate the plaintiff for the damage you find that he is shown to have sustained, taking into consideration such elements as you are told in the other instructions it is proper for you to consider, and then, if you believe from the evidence that the plaintiff and his wife were guilty of contributory negligence and that their negligence was as great as the negligence of the defendant, if any, and bore an equal part in causing plaintiff's damage, then you should deduct from the amount which you find will compensate the plaintiff for the damage sustained one-half of that amount, and return the balance as your verdict in this case. If, on the other hand, you should find that both the plaintiff and the defendant were negligent, but that the negligence of the plaintiff was not as great as that of the defendant, you should deduct less than one-half or more than one-half, depending upon whether plaintiff's negligence was greater or less."

Is this instruction a correct exposition of the law of negligence under the statute? At common law, contributory negligence on the part of plaintiff, no matter how slight, was an absolute bar to recovery. The severity and injustice of this rule has in late years been recognized and the doctrine of comparative negligence has taken its place. Many jurisdictions no longer allow contributory negligence to be considered except in mitigation of damages. The federal employers' liability act, for example, provides: "The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." 8 U.S. Comp. St. 1916, section 8659, p 9423. Our statute does not remove contributory negligence as a bar generally, as does the federal statute, but provides that "contributory...