Fairchild v. Wilson

164 N.W. 657, 101 Neb. 608, 1917 Neb. LEXIS 159

• Court: Nebraska Supreme Court
• Decided: October 2, 1917
• Docket: No. 19615
• Status: Published

Opinion

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 neiv trial, alleging numerous errors on the part of the trial court, hut 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

Affirmed.