¶1dissenting.
¶2I dissent as to the disposition of the fifth assignment of error. The opinion states that the assignment is groundless because the recital of facts is not a charge of negligence.
¶3Instruction No. 1 consists of several paragraphs. It has one paragraph containing the quoted language which is followed immediately in the same paragraph with this: “She claims the defendant, Robert Gillming, was negligent which was the proximate cause of the collision and injuries to the plaintiff.” The next paragraph recites allegations that the defendants were negligent in the following particulars. The first one is that “Defendant caused the truck to be on • the highway in the nighttime without lights and unmarked as a warning to plaintiff.”
¶4Instruction No. 2 is: “You are-instructed that before plaintiff would be entitled to recover on the claims in the petition the burden is upon her to prove by a preponderance of the evidence that the defendant Gillming was negligent in the operation of the truck at the time in one or more of the particulars, as claimed by plaintiff and set forth and enumerated in Instruction No. 1, *99and that such negligence was the proximate cause of the accident and injuries to the plaintiff.”
¶5The second paragraph in instruction No. 2 refers to the answer alleging plaintiff’s negligence and states: “… if you shall first find that the defendant was negligent in one or more of the particulars claimed by the plaintiff, then the burden of proof is upon the defendants to prove …
¶6In Hutchinson v. Western Bridge & Construction Co., 97 Neb. 439, 150 N. W. 193, we said: “Jurors are not lawyers, and are not always prepared to discriminate between that portion of a lengthy charge which contains statements made in pleadings, and the - remainder of it. … Where a petition contains allegations of fact not supported by any evidence, it may be reversible error to include such statements in that part of the charge of the court defining the issues to be tried, and, if the reviewing court is satisfied that the jury has been misled by so doing, it will be its duty to grant a new trial.” We followed that case and others in McCelland v. Interstate Transit Lines, 139 Neb. 146, 296 N. W. 757, wherein we said: “In stating the issue to the jury, it is likewise error, which may be prejudicial, for the trial court to include allegations of which there is no proof.”
¶7In Allen v. Clark, 148 Neb. 627, 28 N. W. 2d 439, we went further and said: “It is reversible error for the court to include, in its instructions to the jury, allegations of fact found in the pleadings but which have not been supported by any evidence.”
¶8It seems to me that the opinion contains a modification of the Allen case. If we are to do that we should so state, and then we must go further and point out the ground for our saying the jury was not misled.