dissenting.
I respectfully disagree with the holding of the majority stating that the failure of the trial court to include the third paragraph of NJI2d Civ. 13.02 in the jury instructions was, in light of the jury’s having actually viewed the property, prejudicial to the City. In this case, the jury had the benefit of hearing expert opinions on behalf of both Mobeco and the City. There were several pictures in evidence that the City’s appraiser, Len Buckwalter, agreed accurately depicted the condition of the property in 1992 and 1995 when Buckwalter did his reinspection. I have carefully reviewed the testimony of all three expert witnesses, Ason Okoruwa, Buckwalter, and Dennis Knudson, and none of them speak as to any increases in value due to public improvements. The only reference to a public improvement was by the City’s expert, Buckwalter, who testified that between his valuations done in 1992 and 1995, all of the apartments on the east side of 26th Street from the cul-de-sac north were occupied, multiple-family apartments with garages built below them. Yet, Buckwalter still valued this property at $.25 per square foot.
The jury had all of the information it needed to decide which of the appraisers’ testimony was the most credible, and it obviously concluded that Mobeco’s expert, who testified that the value of the property was $6.41 per square foot, was more cred*371ible than the City’s expert, who assessed the fair market value of the property at $.25 per square foot. It should be noted that the City attempted to use 17 parcels of real estate as comparables, but 16 of those were Land Reutilization Commission properties being sold at surplus after their foreclosure.
While the requested portion of NJI2d Civ. 13.02 should have been given, the failure to do so did not constitute prejudicial error requiring a new trial. In order to establish reversible error from the court’s failure to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the trial court’s failure to give the tendered instruction. Doe v. Gunny’s Ltd. Partnership, 256 Neb. 653, 593 N.W.2d 284 (1999); Tapp v. Blackmore Ranch, 254 Neb. 40, 575 N.W.2d 341 (1998).
I would affirm the judgment of the trial court rendered pursuant to the jury verdict and would also affirm the award of attorney fees in this case.
Hendry, C J., and Gerrard, J., join in this dissent.