JOHNSON, V.C.J.
This cause stems from an action for damages for wrongful death in which the jury rendered a verdict in favor of the defendant. The court sustained plaintiff's motion for a new trial upon the ground that certain instructions to the jury were erroneous resulting in this appeal. The pertinent part of the three assignments of error interposed by defendant are as follows:
"(1) The court erred in failing, neglecting and refusing to render judgment...
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