A plaintiff's evidence of damages may not be speculative or conjectural and must provide a reasonably certain basis for calculating damages. Pribil v. Koinzan , 266 Neb. 222, 665 N.W.2d 567, 572 (2003). Whether the evidence of damages is "reasonably certain" is a question of law.
In reviewing a claim of prejudice from instructions given or refused, an appellate court must read the instructions together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error. Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003). GM has not demonstrated any prejudice from the instruction.
"The general rule is that uncertainty as to the fact of whether damages were sustained at all is fatal to recovery, but uncertainty as to the amount is not if the evidence furnishes a reasonably certain factual basis for computation of the probable loss." Pribil v. Koinzan, 665 N.W.2d 567, 572 (Neb. 2003).
The appellants argue that since Trieweiler failed to present evidence of net profits, there was not enough evidence to support an award of damages. See, e.g., Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003); Home Pride Poods v. Johnson, 262 Neb. 701, 634 N.W.2d 774 (2001); World Radio Labs. v. Coopers Lybrand, 251 Neb. 261, 557 N.W.2d 1 (1996); Katskee v. Nevada Bob's Golf of Neb., 238 Neb. 654, 472 N.W.2d 372 (1991).
" Id. (citations omitted). The parties agreed in their briefs to the district court that the issue of future damages is governed by Nebraska law as set forth in Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003). The relevant language from Pribil is as follows:
But the Court finds that there is enough evidence of damages to warrant submission to the jury. A plaintiff's evidence of damages may not be speculative or conjectural and must provide a reasonably certain basis for calculating damages: the general rule is that uncertainty as to the fact of whether damages were sustained at all is fatal to recovery, but uncertainty as to the amount is not if the evidence furnishes a reasonably certain factual basis for computation of the probable loss. Pribil v. Koinzan, 665 N.W.2d 567, 572 (Neb. 2003). The initial question of law for the Court is whether the evidence of damages provides a basis for determining damages with reasonable certainty, i.e., the evidence of damages is not speculative or conjectural.
In reviewing a claim of prejudice from instructions given or refused, an appellate court must read the instructions together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error. Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003); Nauenburg v. Lewis, 265 Neb. 89, 655 N.W.2d 19 (2003). IV. ANALYSIS 1. COMAKERS' LIABILITY ON PROMISSORY NOTE
In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003). ANALYSIS
A plaintiff's evidence of damages may not be speculative or conjectural and must provide a reasonably certain basis for calculating damages. Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003).
Smith v. Colorado Organ Recovery Sys., 269 Neb. 578, 694 N.W.2d 610 (2005); Curry v. Lewis Clark NRD, 267 Neb. 857, 678 N.W.2d 95 (2004). A jury instruction that misstates the burden of proof has a tendency to mislead the jury and is erroneous. Pribil v. Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003); David v. DeLeon, 250 Neb. 109, 547 N.W.2d 726 (1996). In reviewing a trial court's ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.