Webb v. Omaha & S. I. R. Co.

that it permitted the car to be filled up; perhaps, second, that it ran the car too rapidly; perhaps, third, that there were rough places in the track. In any event no one may read these instructions without coming to the conclusion that the trial judge was unfortunate in the language used and could not have used such language without prejudicing the defendant.

If the rule contended for by the trial court is adopted by this court, and it seems to have been adopted in the majority opinion, then it will be seen that no statement concerning the facts of the accident may be given by a defendant in a personal injury case hereafter to be tried, and that in each case the only safe thing to do upon the part of the defense is to file a general denial. The rule of law which places the burden of proof upon the defendant to prove contributory negligence is distinguished from an act of independent negligence upon the part of the plaintiff by which the injury is brought upon himself. Cincinnati Traction Co. v. Forrest, 73 Ohio St. 1; Cincinnati Traction Co. v. Stephens, Adm'r, 75 Ohio St. 171.

In McCarthy & Baldwin v. Louisville & N. R. Co., 102 Ala. 193, 48 Am. St. Rep. 29, it is said: "Contributory negligence exists only when the negligence of both parties has combined and concurred in producing the injury."

In Cooper v. Georgia, C. & N. R. Co., 56 S. Car. 91, the court defined contributory negligence, following 7 Am. & Eng. Ency. of Law (2d ed.) p. 371: "Contributory negli gence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.' It is thus seen that contributory negligence by a plaintiff can never exist except when the injury has resulted from the negligence of defendant as a concurring proximate cause."

In Louisville & N. R. Co. v. Sights, 121 Ky. 203, the court defined contributory negligence as follows: "Contributory negligence on the part of the plaintiff necessarily assumes negligence upon the part of the defendant."

Fairchild v. Wilson.

*

In Birsch v. Citizens Electric Co., 36 Mont. 574, the court said: "Contributory negligence on the part of plaintiff presupposes negligence on the part of the defendant. Beach, Contributory Negligence (2d ed.) sec. 64; Wastl v. Montana Union R. Co., 24 Mont. 159; * Moakler v. Willamette Valley R. Co., 18 Or. 189, 6 L. R. A. 656, 17 Am. St. Rep. 717; Montgomery Gas-Light Co. v. Montgomery & E. R. Co., 86 Ala. 372. In Washington v. Baltimore & O. R. Co., 17 W. Va. 190, it is said: 'Properly speaking, contributory negligence, as the very words import, arises when the plaintiff as well as the defendant has done some act negligently, or has omitted through negligence to do some act, which it was their respective duty to do, and the combined negligence of the two parties has directly produced the injury.' It goes without saying, then, that an answer which denies any negligence on the part of the defendant, and alleges that the injury resulted wholly from plaintiff's negligence, does not plead contributory negligence."

The foregoing decisions sustain the proposition that it was error for the trial court to instruct the jury that the burden of proof was on the defendant to establish by a preponderance of the evidence that the plaintiff jumped from a moving car. Also, it was erroneous to instruct the jury that, if the evidence was evenly balanced on that point, then the verdict should be for the plaintiff.

LEWIS F. FAIRCHILD, APPELLANT, V. JOHN H. WILSON, APPELLEE.

FILED OCTOBER 2, 1917. No. 19615.

1. Appeal: MOTION FOR NEW TRIAL. If the motion for a new trial does not challenge the attention of the trial court to the inadequacy of the verdict, the point will not be considered on appeal.

2.

: INSTRUCTIONS. "Instructions relating to the right to recover, and having no bearing on the quantum of damages, cannot be complained of by the plaintiff when the verdict was in his favor, and unsatisfactory only in its amount." Hankins v. Majors, 56 Neb. 299.

Fairchild v. Wilson.

APPEAL from the district court for Keith county: HANSON M. GRIMES, JUDGE. Affirmed.

Wilcox & Halligan, for appellant.

W. E. Shuman, contra.

MORRISSEY, C. J.

This was an action for damages growing out of an assault · with a deadly weapon. The jury returned a verdict in favor of plaintiff. Plaintiff filed a motion for a new trial, alleging numerous errors on the part of the trial court, but not complaining of the amount of the recovery. The motion for a new trial was overruled and judgment entered on the verdict, and plaintiff has appealed.

In the brief a number of the instructions are attacked, but no complaint is made of the instruction defining the measure of damages. It is not necessary to discuss seriatim the errors alleged. Every disputed question was, by the verdict, resolved in favor of plaintiff. The sole matter of which the plaintiff might complain was the amount awarded. This was not called to the attention of the trial court by the motion for a new trial, nor is it assigned, as required by the rules of the court, in the brief. It follows that the inadequacy of the verdict cannot be considered on appeal.

The objections to the instruction given fall within the rule announced in Hankins v. Majors, 56 Neb. 299: "Instructions relating to the right to recover, and having no bearing on the quantum of damages, cannot be complained of by the plaintiff when the verdict was in his favor, and unsatisfactory only in its amount."

The judgment is

101 Neb.-39.

AFFIRMED.

Estelle v. Daily News Publishing Co.

LEE S. ESTELLE, APPELLEE, V. DAILY NEWS PUBLISHING COMPANY ET AL., APPELLANTS.

FILED OCTOBER 2, 1917. No. 20044.

1. Appeal: INSTRUCTIONS: REVIEW. Where instructions have been given by the district court upon the request of one of the parties to the suit, he will not afterwards be heard to complain in this court on appeal that the instructions were erroneous.

2. Libel: QUALIFIED PRIVILEGE. The law with regard to qualified privilege, and the necessary elements which must be shown in order to uphold a verdict for libel in such a case, laid down in the former opinion, is adhered to.

3. Instructions examined, and held to be in accordance with the law of the case.

4. Libel: DAMAGES: EVIDENCE. The condition and situation in life of one injured by a libel may be shown in evidence, and may be considered by the jury upon the question of the amount of damages.

APPEAL from the district court for Dodge county: FREDERICK W. BUTTON, JUDGE. Affirmed.

Brown, Baxter & Van Dusen, Courtright, Sidner & Lee, Gurley & Fitch, Elmer E. Thomas and Arthur G. Wray, for appellants.

Mahoney & Kennedy, Frank Dolezal and Stout, Rose & Wells, contra.

LETTON, J.

It is unnecessary to set forth the facts in this case, since they are fully stated in the opinions upon a former appeal, reported in 99 Neb. 397. At that time a judgment in favor of the plaintiff was reversed and the cause remanded for trial. In the majority and concurring opinions the issues to be submitted to the jury upon another trial were fully stated. Many questions discussed in the briefs on this appeal were argued by counsel and disposed of by the opinion and judgment. It is unnecessary, therefore, to restate or reconsider the propositions of law thus settled.

Estelle v. Daily News Publishing Co.

On a second trial the plaintiff recovered a judgment for the sum of $10,000 against each of the defendants, and this appeal results. A large number of assignments of error have been made, but only a few propositions have been argued in the briefs or by counsel orally, and, in accordance with the settled rule of this court, those only will be noticed.

It is argued that the petition does not state a cause of action, that the publication on its face was an innocent campaign appeal, and is not susceptible of a libelous interpretation. This point was determined upon the former appeal, and it was the view of all the judges that the petition stated a cause of action.

It is next said: "Occasion determines the question of privilege. If the occasion exists, actual malice must be shown before the plaintiff can recover"-and in this connection that the cause "was submitted to the jury under instructions which left the jury as much at sea with reference to the rules of law in arriving at a verdict as if no instructions had been given." An examination of the instructions shows that the district court followed the decision of this court with reference to the questions to be submitted to the jury. Not only were such propositions submitted in the abstract, but by making reference to the facts the court directly called attention to the specific questions to be determined, in accordance with the law laid down by this court; and, furthermore, most of the instructions requested by the defendants were given either verbatim or in substance. The material facts on which the liability of the defendants depended were clearly stated.

The complaint is made that the instructions told the jury that the only inquiry for them to make was to determine whether the publication was made maliciously, and whether the readers would understand it to charge plaintiff with corruption or improper motives in his office, and practically informed the jury that they were concerned neither with the truth nor falsity of the article. It is also said that nowhere did the trial judge instruct the jury that it was necessary that they should find actual malice