Richards v. Borowsky

• Decision Date: 21 March 1894
• Citation: 39 Neb. 774,58 N.W. 277
• Parties: RICHARDS v. BOROWSKY.
• Court: Nebraska Supreme Court

39 Neb. 774

58 N.W. 277

RICHARDS

v.BOROWSKY.

Supreme Court of Nebraska.

March 21, 1894.

Syllabus by the Court.

1. A party cannot be heard to complain that the trial court gave an instruction embodying only the same propositions of law given by the court at the request of the complaining party.

2. To a review of the taxation of costs in the trial court, a ruling on a motion to retax the same, together with an exception to such ruling, must be shown by the party seeking such review. Real v. Honey, (filed March 6, 1894,) 58 N. W. 136, and Bates v. Salt Co., 55 N. W. 258, 36 Neb. 901, followed.

Error to district court, Dakota county; Norris, Judge.

Action by Allen S. Richards against Charles Borowsky to recover for an assault and battery. There was judgment for plaintiff for $1 and costs, from which he brings error. Affirmed.J. J. McAllister, for plaintiff in error.

Jay & Beck and J. B. Barnes, for defendant in error.

RYAN, C.

Plaintiff, in an action for damages resulting from personal injuries inflicted by defendant, recovered judgment upon a verdict for one dollar. The verdict was upon such conflicting evidence as to preclude disturbing it because not sustained by sufficient evidence.

Plaintiff in error complains that one instruction of the court made reference to an altercation between the parties which occurred on the day before that on which the injuries sued for were received. This instruction, however, warned the jury that the incidents of the first quarrel could not be considered as justifying injuries subsequently inflicted by defendant upon the plaintiff. The second quarrel seems to have commenced with such reference to the first as precluded the possibility of ignoring it. A history of the first quarrel was therefore given, that the language used in the second quarrel, referring to the first, might be understood. The court instructed the jury that the incidents of the first quarrel could only be considered for the purpose last indicated, and not as a justification of any act in the second quarrel. Plaintiff requested and obtained an instruction embodying the same propositions as were embraced by the above instruction of the court. If there had been error in the instruction given by the court,--which there was not,--it would not have been available to a party upon whose motion a like instruction was given the jury.

Plaintiff in error complains that certain numbered instructions asked were refused, but as they are neither...