Mundy v. Davis , 154 Neb. 423 ( 1951 )

Carter, J.,

dissenting.

I am not in accord with that part of the opinion which holds that the trial court, in the absence of request, must instruct the jury that defendant is entitled to receive the benefit of any evidence of contributory negligence which the evidence offered by plaintiff tends to establish. The trial court is required to instruct upon the issues of the case, whether requested or not, but it is my understanding that it is not reversible error to fail to instruct upon the effect of particular evidence adduced in the absence of request.

I submit that the cases cited in support of the announced rule do not sustain the holding. In Johnson v. Griepenstroh, 150 Neb. 126, 33 N. W. 2d 549, the question was not raised, discussed, or considered, and is pure dictum insofar as the interpretation claimed for it by the majority opinion is concerned. In Plumb v. Burnham, 151 Neb. 129, 36 N. W. 2d 612, the words “and the trial court should so instruct the jury” do not appear and the case does not therefore support the rule for which it is cited as a precedent. An examination of these cases shows that they were dealing with the question of the burden of proof and not with the question of whether or not the trial court must instruct on his own motion that the jury should consider any evidence of contributory negligence which appears in the evidence adduced by the plaintiff.

By instruction No. 14 the court told the jury, among other things, that it was to consider “all other evidence, facts and circumstances proved tending to corroborate or contradict such witnesses.” In City of Beatrice v. Forbes, 74 Neb. 125, 103 N. W. 1069, this court held a similar instruction to be adequate in the following language: “It can hardly be, however, that the jury were misled, as in its fourth instruction the court told them that, in determining the issues in the case, they should take into consideration the whole of the evidence and all the facts and circumstances proved on the trial, giving the several parts of the evidence such weight as they thought it entitled to.” I submit that the logic and conclusion of this case sustain my position in the case before us.

As I view it, the instructions taken as a whole properly submit the issues, and in the absence of a request the court committed no error in not giving the instruction which the majority opinion holds was required. The majority opinion announces a new rule which is not sustained by logic or authority. I would affirm the judgment.

I am directed by Yeager, J., to state that he joins in this dissent.