Schroeder v. Rinehard

Reese, Oh. J. This is a proceeding in error to the district court of Platte county. The original action was for damages for personal injury. The cause was tried to a jury, who returned a verdict in favor of the plaintiff in the action. A motion for a new trial was filed, which was overruled and judgment was rendered on the verdict. There are two errors assigned in the petition in error: [76] First. That the court erred in giving paragraphs number ten and eleven of the instructions given to the jury by the court upon its own motion. Second. The court erred in overruling the motion for a new trial. So far as the first assignment of error is concerned, it must be sufficient to say that no exception was taken to the giving of the instructions referred to; they, therefore, cannot be examined in this proceeding. As to the second assignment, it appears from the transcript that the motion for a new trial was made upon the following grounds: First. The damages are excessive, appearing to have been given under the influence of passion and prejudice. Second. The verdict is not sustained by sufficient •evidence. Third. The verdict is contrary to law. Fourth. The court erred in giving the tenth and eleventh paragraphs of the instructions given on its own motion. The fourth assignment has been sufficiently noticed in the foregoing. The first, second, and third cannot be examined, as there is no bill of exceptions on file in this court showing what ■the evidence before the jury was. It is a well-settled rule of law that all presumptions are in favor of the proceedings of the district court; that error will never be presumed, but must affirmatively appear of record. No error being found, the judgment of the district court is affirmed. Judgment affirmed. The other judges concur.