Haner v. Northern Pacific Railway Co.

Citations

• 7 Idaho 305
• 62 P. 1028
• 1900 Ida. LEXIS 53

Syllabus

<p>Allegations. — Where the complaint alleges negligence only in the running, managing and operating a locomotive and train of cars, the right of recovery is limited to the negligence alleged. As the well-settled rule is, the evidence must be confined to the issues made by the pleadings.</p> <p>Evidence — Peremptory Instruction. — Where there is no evidence to establish the material issues of the complaint, tne court on motion of the defendant ought to instruct the jury to return a verdict for the defendant.</p> <p>Same — Pacts not in Issue. — Evidence ought not to be admitted of facts not put in issue by the pleadings.</p> <p>Contributory Negligence — Burden of Proof. — Under the rule laid down in Minty '<>. Union 1’ae. Ry. Vo., 21 Pae. 660, 2 Idaho, 471, Rumple v. Oregon Short Line Vo., 4 Idaho, 13, 35 Pae. 702, and Spokane ele. Ry. Vo. v. Holt, 4 Idaho, 443, 40 Pae. 56, it was error for the court to instruct the jury that the burden of proof was upon the defendant to establish contributory negligence on the part of plaintiff, as the plaintiff must allege and prove that the damage occurred without contributory negligence on his part.</p> <p>Instructions. — -When no interest is demanded in the complaint it is error to instruct the jury to return a verdict for interest.</p> <p>(Syllabus by the court.)</p>