Hartzler v. Metropolitan Street Railway Co.

Plaintiff sues for $10,000 for the wrongful death of his wife — his action obviously grounded on the amendment to section 2864 of the old Damage Act (Laws 1905, p. 135, el seq.) — and recovers $4,000. The answer is a plain general denial and an allegation of contributory negligence. Dp to the moment of verdict and judgment, no constitutional guarantee was invoked by defendant. In a motion for a new trial defendant, for the first time, raised a constitutional question below. Point eight of that motion runs:

“The court denied to this defendant in the giving of the instructions numbered 1 and 5…