Post v. Olmsted
| Citation | 66 N.W. 828,47 Neb. 893 |
| Decision Date | 07 April 1896 |
| Docket Number | 6473 |
| Parties | BERNARD H. POST v. ROBERT H. OLMSTED, ADMINISTRATOR |
| Court | Supreme Court of Nebraska |
ERROR from the district court of Douglas county. Tried below before SCOTT, J.
AFFIRMED.
Cowin & McHugh, Langdon & Clair, and M. V. Gannon, for plaintiff in error.
McCoy & Olmsted, contra.
This was an action by Olmsted, as administrator of William Allen Daniel, deceased, to recover from Post for injuries causing the death of plaintiff's decedent, alleged to be due to the negligence of the defendant. There was a verdict and judgment in the district court for the plaintiff for $ 2,400 which the defendant seeks to reverse.
We designate the parties as they appeared in the district court. The plaintiff, in a very elaborate brief urges a number of technical objections to the record, which, he claims, preclude us from an examination of any of the errors assigned. The points so raised are so numerous that we pass them over without a detailed consideration, inasmuch as a consideration of the case on its merits, so far as is permitted by already well settled rules of practice, requires an affirmance of the judgment.
Complaint is made of certain rulings of the trial court on the admission of evidence. These we cannot consider, as there is no assignment in the petition in error presenting such questions.
Complaint is also made of certain instructions given by the court. In the motion for a new trial, and also in the petition in error, the only assignment with reference to these instructions is that "the court erred in giving instructions 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, which was duly excepted to at the time by the defendant." Under a well established rule, this assignment can be considered no further than to ascertain that one of those complained of was correct. It is at once apparent from an examination of the charge that a number were free from error. So this assignment must fail.
Another assignment is that the court erred in not giving instructions 1 and 2 asked by the defendant. No such instructions appear in the record.
A further assignment is that the court erred in overruling the motion for a new trial. As the motion for a new trial assigns six grounds, and no one is designated in the assignment in the petition in error, this presents nothing for review.
The remaining assignments are that the verdict is not supported by sufficient evidence and that it is contrary to law. It is not contrary to law if supported by sufficient evidence. The evidence tends to show that the defendant was a dairyman, using in his business a number of teams and wagons. In January, 1891, two of these wagons, loaded with malt, were being drawn along Seventeenth street in Omaha, each propelled by three horses hitched abreast of one another. The plaintiff's decedent, a boy seventeen years of age, was riding upon a hand sled attached to the rear of the foremost wagon. The horses attached to both wagons were walking; but the rear wagon was approaching the front wagon. It continued to draw nearer until one of the horses attached to the rear wagon...
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