Wier v. Burlington & M. R. R. Co.

• Decision Date: 10 February 1886
• Parties: WIER v. BURLINGTON & M. R. R. CO.
• Court: Nebraska Supreme Court

19 Neb. 212

26 N.W. 627

WIER

v.BURLINGTON & M. R. R. CO.

Supreme Court of Nebraska.

Filed February 10, 1886.

Error from Lancaster county.

Cornish & Tibbetts, for plaintiff.

Marquette & Deweese, for defendant.

REESE, J.

This action was brought by plaintiff to recover damages for the depreciation in the value of his residence property by reason of the erection and operation of a railroad track in the street upon which the property abutted. There is no bill of exceptions, and the cause is presented upon the record, consisting of the pleadings, instruction of the jury, verdict, and judgment. The motion for a new trial assigned a number of grounds or reasons why the verdict of the jury should be set aside, but, as many of them involved admission or rejection of evidence, or other grounds which would require an examination of the proceedings at the trial, we of course cannot inquire into them for want of a bill of exceptions. There are two grounds which it is insisted may be examined by the light of the record we have. They are as follows: “The court erred in refusing the instructions to the jury asked by plaintiff, which refusal was duly accepted by plaintiff.” “The court erred in each and every instruction given to the jury, and instructions were excepted to by plaintiff.”

Three of the instructions asked by plaintiff were refused. Twelve instructions were given, some of which were upon the court's own motion and some upon the request of defendant. There is nothing in the motion for a new trial, nor in the petition in error, which in any way may designate the instructions refused nor those given, of which complaint is made.

In Hastings & G. I. R. Co. v. Ingalls, 15 Neb. 129, S. C. 16 N. W. Rep. 762, the present chief justice, MAXWELL, in writing the opinion, says: “There is good reason for allowing a general assignment of all errors arising from objection to the admission or rejection of testimony, as it is frequently almost impossible to point out all such errors in the motion for a new trial; but no such difficulty arises in regard to instructions. The statute requires them to be given in consecutively numbered paragraphs, and provides that they may be excepted to, without assigning a reason therefor. One of the objects of the statute was to enable a party objecting to an instruction to bring it to the attention of the court by number, and thus avoid the inconvenience of copying the same. * * * It is but justice to the trial court that objections to instructions be pointed out, and, in our opinion, the statute has not changed that requirement.”

Applying the above rule to this case, it is clear that ...