
    John S. McGee, Appellee, v. Maurice McAuliff, Appellant.
    
    No. 16,281.
    1. Pleadings — Motion to Make Definite and Certain. The denial of a motion to require a petition charging negligence to be made more definite and certain was not error.
    2. Practice, District Court — Instructions. In an action for negligence the refusal to give a requested instruction was not ' .error, in view of the instructions given.
    Appeal from Saline district court; Rollin R. Rees, judge.
    Opinion filed March 12, 1910.
    Affirmed.
    
      Thomas L. Bond, for the appellant.
    
      C. W. Burch, and B. I. Litowich, for the appellee.
   Per Curiam:

The defendant urges two grounds of error upon which he claims the motion for a new trial should have been sustained, and adds the denial of the motion as the third ground of reversal. The first error assigned is the refusal of the court to require the plaintiff more specifically to allege the act or acts of negligence for which he sought to recover. We think the petition is sufficiently specific to inform the defendant of the issue he had to meet. The trial demonstrates that he had witnesses in attendance who testified as to every fact which is claimed should have been more specifically stated. Indeed, the defendant in his brief claims that he disproved every claim of negligence on his part which the evidence produced by the plaintiff tended to establish.

The second error assigned is that the court refused to give an instruction requested by the defendant to the effect that the plaintiff could not recover unless the jury should find that the defendant’s negligence was the proximate cause of the injury. The eighth instruction given by the court conveys the same idea, without using the word “proximate,” in words more likely to be understood by the jury. Indeed, this instruction seems, to require too much of the plaintiff, to wit, that before the plaintiff could recover it must affirmatively appear from the evidence that he was not guilty of contributory negligence.

The issue was one of fact, and, under instructions-too favorable to the defendant rather than otherwise, was determined by the jury upon very conflicting evidence. Their finding for the plaintiff was approved by the court. The judgment is affirmed;  