Walloch v. Heiden

Butler, J.,

(after stating' the facts). The appellant complains, first, of the giving of instruction No. 4, as follows: “The court instructs the jury that if you find from the evidence that neither the plaintiff nor defendant was guilty of negligence, as defined in other instructions, but that the injury was the result of accident, then your verdict will be for the defendant. ’ ’

Appellant contends that this instruction presented a question not within the issues raised by the pleadings, and that there was no evidence upon which the instruction might be based, and that it was therefore abstract,…