This was an action to recover for personal injuries sustained by the plaintiff for an assault and battery alleged to have been committed by the defendant. The defendant’s answer was a denial and a" plea of self-defense. By a former opinion (Nofsinger v. Paup, 96 Neb. 805), we held that the evidence was insufficient to sustain the verdict in favor of the defendant. A rehearing was allowed, the cause has been reargued and submitted, and,the question now is: Shall we adhere to our former opinion?
It appears that on the 24th day of May, 1911, the plaintiff started from his home with a load of wheat to be delivered at Albion, which place lies about seven miles northeast of the plaintiff’s premises. At the corner of the defendant’s farm a boy named Adam Gardner got upon the wagon and rode with plaintiff to a point where the difficulty occurred. The plaintiff testified, in substance, as follows:’ I had *600stopped about five times from tlie Paup corner to tbe hill, about 25 or 30 rods south of the Gardner place. I stopped at the bottom of the hill. I then made a pull and stopped perhaps 50 feet up the hill. I raised up to get off my wagon to start my team. While doing that I said: “They are playing thunder with these confounded drags.” When I looked back I saw Mr. Paup with his spade up ready to strike. He was close to the east of his horses’ heads, about eight feet from me. When I dropped my lines I turned, facing him. I came within about four feet diagonally northeast from the hub of my Avheel. Paup said: “If you come an inch I will hit you with this spade.” I was holding up my right hand to keep him from hitting me. I begged him not to hit me with the spade. He said: “I will hit you with the spade; I Avill hit you with the spade.” And he said some foul words as he struck me. He said: “I will just kill you.” There was scarcely a check from the first words spoken until I was hit.
The testimony of the defendant, relating to the commencement of the affray, was, in substance, as folloAvs: On the morning of May 24, I Avent out and King-dragged the road. I noticed plaintiff’s team over the hill. I knew he was prejudiced against us Avorking the road. I did not want to meet him. I Avaited until he went north of the corner, about 40 rods from Avhere I was. When I got on top of the hill he was about 60 rods ahead of me. When I saw him next he Avas about 30 rods ahead of me. When I got doAvn there the horses began to sIoav up, and I looked up and said, “Whoa,” and they stopped, and there was Mr. Nofsinger’s team standing in the road. He turned round in the seat and said: “What in the devil do you want to be dragging these roads for all the time?” I finally says: “What’s biting you?” He said: “There is a whole lot biting me.” He climbed off1 the wagon Avith the Avhip in his hand and started toward me. I waited until he got back of the back end of his Avagon, and he kept coming, and I Avaited until he got pretty near to the head of my horses, and I saAV that he was going to come, and I had this shovel on there, and I picked it up and *601warned Mm to stand back. I told Mm not to come any farther. He was then about 10 feet from me. I said: “Stand back or I will hit you.” He was in front of me watching me, and I was looking at him. I warned him the second time. He kept crowding in on me. I warned him the third time to stand back, and he kept crowding up on me, and when I warned him the third time he made a rush at me like that, and I struck him with the spade. I do not know whether I hit him with the spade, or whether the spade came off and hit him, but anyway he rushed into me and commenced pounding me with the butt end of the whip, and he struck me across the face an'd over the head and kind of dazed me, and when I came to he had his thumb in my eye trying to gouge my eye out, and 1 jerked away from him an'd got my thumb in his mouth, and he bit me on the thumb, and I jerked away from him, and in some way or other I was trying to push him from.me,, and I got him by the shirt, and in the tussle I threw him down and was holding him down. He said: “You ought to be ashamed of yourself to hit an old man 52 years old.” And I said: “You ought to keep a 52-year old man’s place.”
Adam Gardner, who was the only other witness whu saw the encounter, testified, in substance, as follows: I was riding with Mr. Nofsinger. He had stopped Ms team there, and Paup came up behind him. Nofsinger used a vulgar and profane expression, and then said: “What are you always dragging up my tracks for?” Paup said: “What’s biting you?” And Nofsinger went off his wagon with his whip in his hand and went back to him. Paup said: “Stand back or I will hit you.” And he said: “I will dare you to hit me with the spade.” Mr. Paup said three times, “Stand back.” Nofsinger went right toward him, and he hit him over the head with the spade. Nofsinger fell and clinched Mr. Paup. That is all I saw, and I went into the house. Nofsinger was holding his hand up to his face. He had a broken-off piece of buggy whip three or four feet long in Ms hand. Paup moved *602backward. They were 10 or 15 feet back of the hind wheel •when the blow was struck with the spade.
The foregoing is the substance of the testimony describing how the encounter between the plaintiff and defendant took place. There was considerable other testimony, and the statements of the witnesses named were to some extent modified by cross-examination, but the above is a fair statement of what the testimony show's.
It must be conceded that Nofsinger was quite severely injured by the blow struck with the spade. His other injuries wrere comparatively slight. The defendant was also injured in the fight, but his injuries were not permanent. The case was submitted to the jury under proper instructions. In fact, the trial court submitted nearly all of the instructions requested by the plaintiff. Some of them were slightly modified,' but, as we viewr the record, the modifications Avere properly made. The jury returned a verdict for the defendant, on which the trial court rendered judgment. By a reference to the testimony, it is apparent that the jury were of the opinion that the plaintiff Avas the aggressor, and that the defendant struck him in self-defense. If this was so, plaintiff could not recover, unless the defendant used more force than, under the circumstances, an ordinarily prudent man would be justified in believing was necessary to repel the assault, and the jury were apparently convinced that the force used by defendant Avas justifiable. We are unable to say that the jury were not justified in arriving at that conclusion.
Where a question is submitted to the jury upon conflicting evidence and fipon proper instructions, the verdict will not be set aside by a reviewing court, unless it is clearly wrong. The evidence was substantially conflicting, and in such case the verdict of a jury should not be set aside on the ground of its being against the weight of evidence, unless it is clearly so, and more especially ought this rule to be observed by reviewing courts. Considering - the charge to the jury as a whole, we find no prejudicial error in the instructions.
*603It follows that our former judgment should be, and is, set aside, and the judgment of the district court is affirmed.
Judgment accordingly.
Morrissey, C.> J., not sitting.