Wier v. The Burlington & Missouri River Railroad Co.

• Decision Date: 10 February 1886
• Citation: 26 N.W. 627,19 Neb. 212
• Parties: JOHN WEIR, PLAINTIFF IN ERROR, v. THE BURLINGTON AND MISSOURI RIVER RAILROAD COMPANY IN NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

26 N.W. 627

19 Neb. 212

JOHN WEIR, PLAINTIFF IN ERROR, v. THE BURLINGTON AND MISSOURI RIVER RAILROAD COMPANY IN NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

February 10, 1886

ERROR to the district court for Lancaster county. Tried below before GASLIN, J., sitting for POUND, J.

AFFIRMED.

Cornish & Tibbetts, for plaintiff in error.

Marquett Deweese & Hall, for defendant in error.

OPINION

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 construction 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, instructions to 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 excepted to 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 designates the instructions refused nor those given, of which complaint is made.

In Hastings and Grand Island R. R. Co. v. Ingalls, 15 Neb. 123, 16 N.W. 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 plaintiff in error has not presented any questions here which we...