Vertrees v. Gage County

• Decision Date: 19 March 1908
• Docket Number: 15,212
• Citation: 115 N.W. 863,81 Neb. 213
• Parties: HARRY N. VERTREES, APPELLANT, v. GAGE COUNTY, APPELLEE
• Court: Nebraska Supreme Court

115 N.W. 863

81 Neb. 213

HARRY N. VERTREES, APPELLANT, v. GAGE COUNTY, APPELLEE

No. 15,212

Supreme Court of Nebraska

March 19, 1908

APPEAL from the district court for Gage county: WILLIAM H. KELLIGAR JUDGE. Reversed.

REVERSED.

E. O Kretsinger, for appellant.

M. W Terry, F. O. McGirr and Hazlett & Jack, contra.

FAWCETT, C. CALKINS, C., concur.

OPINION

FAWCETT, C. J.

This is an action to recover damages for personal injuries suffered by the plaintiff while assisting in an attempt to move a threshing machine engine over a county bridge, and immediately occasioned by the falling of the bridge. The answer is a general denial qualified by a plea of contributory negligence. That the bridge was old and rotten and in a generally unsafe condition and had been so for several years, and that its condition had been for a long time well known to the county authorities and to the public generally, is proved by overwhelming evidence, and is admitted by counsel for the defendant, so that practically the only issue litigated on the trial was that of contributory negligence, concerning which the evidence is conflicting. The verdict and judgment were in favor of defendant, and plaintiff appealed. The court, at the request of defendant, gave the following instruction: "The court instructs the jury that the plaintiff is required to prove his case by a preponderance of the evidence without disclosing any negligence on his part, and if you believe from the evidence of the plaintiff himself that the circumstances known and apparent to him, and immediately preceding and connected with the injury, as disclosed by plaintiff's testimony, were such that a reasonably prudent and cautious man under like circumstances in the exercise of reasonable prudence and caution would have known, understood and discovered the danger of going upon the bridge where he was injured, then the plaintiff cannot recover." The court was clearly in error in instructing the jury "that the plaintiff is required to prove his case by a preponderance of the evidence without disclosing any negligence on his part," without at least adding thereto the words, "which contributed to the injury complained of." In fact many decisions state the rule much stronger, and, as we believe, more justly, that the contributory negligence must be such as contributed directly to the injury complained of. This part of the instruction left the jury at liberty to find against the plaintiff, if on that occasion he had been guilty of any negligence of any kind whatever, whether the same contributed to the accident or not. This is not the law.

The instruction also tells the jury: "And if you believe from the evidence of the plaintiff himself that the circumstances known and apparent to him, and immediately preceding and connected with the injury, as disclosed by plaintiff's testimony, were such that a reasonably prudent and cautious man under like circumstances in the exercise of reasonable prudence and caution would have known understood and discovered the danger of going upon the bridge where he was injured, then the plaintiff cannot recover." This part of the instruction was erroneous for three reasons: (1) The effect of it was to tell the jury that plaintiff was bound to establish by a preponderance of the evidence that he was not guilty of contributory negligence. (2) The court had no right to limit the jury to the plaintiff's own testimony. The plaintiff is not required to stand or fall by his own testimony. He is entitled to the benefit of all of the evidence in the case. He might give testimony himself which would tend to show contributory negligence sufficient to warrant a jury in finding him guilty of contributory negligence; yet, if the other evidence in the case fully explained his apparent contributory negligence, he would be entitled to the benefit of that evidence, and the court is without power to deprive him of it, as was done by this instruction. (3) This part of the instruction is not warranted by "plaintiff's testimony," as there is nothing whatever in "plaintiff's testimony" which shows that he knew of the dangerous character of the bridge, or which would charge him with a suspicion of its dangerous character. He states positively that he did not know it was dangerous. His testimony discloses that he knew only he week before of a load passing over the bridge which must have weighed over 7,000 pounds. The separator of the threshing machine outfit, to which the engine belonged, had passed over it only a short time prior to their attempt to take the engine across. He was a young fellow there, helping with the engine. The owner of the engine himself, a man of mature years and experience, was present on the bridge with plaintiff and the engine at the time of the accident, apparently without any fear of danger either to himself or his engine; and, when...