§ 25-1113 — Given or refused instructions; how indicated; requirements

Nebraska § 25-1113

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

The court must read over all the instructions which it intends to give, and none others, to the jury, and must announce them as given, and shall announce as refused, without reading to the jury, all those which are refused, and must write the words given, or refused, as the case may be, on the margin of each instruction.

Legislative History

Source: Laws 1875, § 3, p. 77; R.S.1913, § 7852; C.S.1922, § 8796; C.S.1929, § 20-1113; R.S.1943, § 25-1113. Annotations: Endorsement on instruction "given as modified" was not in accord with statute, but was not prejudicial. Asher v. Coca Cola Bottling Co., 172 Neb. 855, 112 N.W.2d 252 (1961). Instructions given should be so endorsed by trial judge. Segebart v. Gregory, 160 Neb. 64, 69 N.W.2d 315 (1955). Giving of oral instruction was reversible error. Dow v. Legg, 120 Neb. 271, 231 N.W. 747 (1930), 74 A.L.R. 5 (1930). Instructions must be read to jury in open court. Taulborg v. Andresen, 119 Neb. 273, 228 N.W. 528 (1930), 67 A.L.R. 642 (1930). Failure to write word "given" on instruction read to jury is not ground for reversal when not prejudicial. Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640 (1903); McClellan v. Hein, 56 Neb. 600, 77 N.W. 120 (1898); Home Fire Ins. Co. v. Decker, 55 Neb. 346, 75 N.W. 841 (1898). Instructions must be considered together. To review alleged errors in refusing instructions they must be called to attention of trial court by motion for new trial. Schmitt & Bros. Co. v. Mahoney, 60 Neb. 20, 82 N.W. 99 (1900). Disregard of provisions is ground of reversal if excepted to. Tracey v. State, 46 Neb. 361, 64 N.W. 1069 (1895); Omaha & Florence L. & T. Co. v. Hansen, 32 Neb. 449, 49 N.W. 456 (1891); Gillen v. Riley, 27 Neb. 158, 42 N.W. 1054 (1889). Record must show ruling on instruction, or action of court will not be reviewed. It is not error to fail to mark "given" or "refused." Jolly v. State, 43 Neb. 857, 62 N.W. 300 (1895); City of Chadron v. Glover, 43 Neb. 732, 62 N.W. 62 (1895). Failure to read instructions to jury is reversible error. McDuffie v. Bentley, 27 Neb. 380, 43 N.W. 123 (1889). A trial court's failure to mark a jury instruction as "given" or "refused" pursuant to this section is not available as error on appeal in the absence of an objection made on these statutory grounds at trial. Schuemann v. Menard, Inc., 27 Neb. App. 977, 938 N.W.2d 378 (2020).