Omaha daily bee., 1895-04-22
suPREMk cornr srLLtnL

] NAlt HiNAlsts VI u lhNlhfEs lnt SulldNt
waters produced by rains,and melting SHOWS
| were wont TO run into, this draw from the
/ surrounding territory and thence find their
way to the Platte riNerfi A railroad com
| pany constructed itsf roadbed across the
| premises and built an embankment, without
/ culvert or opening, over the draw In n
suit by the farmer against the railroad COM
pany for damages for negligently construct
! ing the embankment without an opening
| whereby the surface waters were estOpped
| and overfowed the fRtmer's land and de-
stroyed his crops. Heidi:
| l. That the evidence Sustained the find
| ings Of the jury that the railroad company
negligently constructed its embankment
! 2. The evidence examined and held suf-
| icient to sustain the verdict.
| 8. The action of the court in admitting
| testimony examined and held not erroneous.
4. Where no objections are made nor eX-
ceptons taken to the admission Of testimony
| IN the trial court, such action cannot be re-
| viewed in this court.
8. 1t was assigned fer error that the court
erred in giving paragraphs 2, g. 4, ., 6, T.
8 and 10 of the instructions given by the
court on its own motion, for the reason
! that under the evidence the court sh h1uld
| nave instructed the jury to acquit the de-
| of his guilt to the jury. Held that the de-
| termination that there was sufficient evi-
| dence to sustain a verdict against defendant
meets this objection to the instructions.
| 6. Where in an assignment of error in n
| motion for a new trial it is stated that the
| court erred in refusing to give a group Of
| instructions, it Will be examined or COnSid-
| cred no further when ii is ascertaned that
| the refusal to give any one of the nstruc-
| tions was proper. (Jenkins against Mitchell
| 50 N w Rep, 90 S. c. 40 Neb., 66i)
! Harereaves against Korcek Appeal from
Buffalo county. Affirmed. Opinion by Jus
| tiCe Harrison.
! prisonment of the husband when used to
| induce a man and his wife to execute and
| deliver a mortgage upon their homestead to
secure the payment of a judgment against
| him, where the threats so overcome their
! wills as to induce them to atfiX their sig
| natures to such mortgage and thus give
| a security which they would not voluntarily
| have executed, are sufficient to constitute
| duress and avoid the operation of the instru-
?. The evidence examined and held suf-
| ficent to support the findings and decree of
Mawhiney against Green. Error from
Nance county. Affirmed opinion by Com
In this case there were involved only ques-
| tions of fact, as to which the evidence was
| such as fully justified the direction given
the jury to find for the defendant in error
Chicago, Rock Island & Pacific Railway
company against Griffith ct al. Err from
| Lancaster county. Affirmed. Opinion by
Commissioner Ryan.
While it is not competent to show the
| price at which other property has been sold
for the purpose of proving the value of that
| taken for railroad purposes, yet IT, IN cross
| examination of witnesses for the adverse
| party, the railroad company adopts that
| line of inquiry, error will not be presumed
! from re-eXamination confined to such line
| II.
2. Error cannot be predicated upon the
mere fact that witnesses under examination
as to the value Of several lots in the same
immediate neighborhood in arriving at their
| value estimated that of one class, then
| having considered wherein that class diff
| fered from another, qualified their estimates
| of the value Cf the latter class by taking
! into consideration the cost of removing
| such difference when such removal was by
such witnesses deemed practicable and adj
| vsable. 80.
3. An affidavit in sppport of a motion for
/ rfnI ha o,-ai1 1n1,n
be embodied in bilR of exceptions, and al
legged errors not excepted to will not be
| considered. si
steinkraus ct al against Korth. ct al
Appeal from PierGfs county. Affirmed
Where property is conveyed from one rsla-
| tive to another as a payment of an alleged
past due indebtedness and thereby credi-
| are deprived of their just dues and claims
the. transaction will be EcrutinizGd or ex-
be clearly established. Plummsr against
Rummel, 2G Nebraska 1i4 followed.
2. The finding of a, II trial court based upon
appeal to this court unless clearly wrong.
8; The evidence in this case eXamined and
! district court ( sls
ro'Rourke against Burke, Error from
Commissioner Ryan.
In a building contract it was provided in
effect that part of Jr the tn mgR
as the work progressed, and Furthermore,
| that in case of payment certificate should
| be obtained from the architect among other
things to the effect that he considered the
payment due; Held: That to the amount Of
the required certificates of guarantor of
complianca with the terms of his agreement
by the contractor was discharged:
.. The reservation of the, right at his own
! option to make payments by assuming lum-
| Der bills of necessity excluded the infer,
payment of lumber bills, of the existence of
which he had no knowledge.
changes in plans to be followed in the ersc-
ton of a building implies, as against m re
| guarantor of performance by the contractor
| for the erection of such building, that the
changes shall be such as reasoma6iy mEiht ti6n
| of the parties principal at the time such
| building contract was entered into.
Chicago Bgriipgt4n E'Iimey ne yroi; Earoaa y y
ilton county. Reversed Opinion by Com
Section 10l, chapter xvi Compiled Stat
utes, requiring that bell shall be rung or
! a steam whistle sounded by locomotive
at distance of at least eighty rods FRO from +ba the
in fact used by the public, though not ded-
Gated as public highways, as to those SO
q The object of that statute is not merely
| to protect persons intending to cross the
track from collisions, but also to protect
| all persons lawfully at or near the crossinS
hended from the. sudden approach without
! warning of a train at such a place.
| 3, Therefore, where a crossing had been
| provided at a railway station to afford ac-
cess to the depot, one whose team had been
| driven to car upon a side track near the
| depot for the purpose of unloading the car
| was within the protection of the statute
| 4. In such case 1t was erroneous 10 m
struct the jury that the railroad company
| was liable If it failed to give the signal re
| quired by statute, provided the INJURY was
| caused in consequence of such omissloll
| Union Pacific Railway company against
| Rasmussen, 25 Nebraska, SlO in SO far as d
| states a contrary doctrine, oVerruled. .
5. Where chattelS are injured by the negll-
| gence of another, but not wholly DESTROYED
| the measure of damages is the dlHerence
| between the value of the chattsls imme-
| diately before their injury and Immediately
| thereafter. , =, 4,
g. One whose chattals are injured by the
| negligence of another cannot by voluntarily
abandoning what remains charge that other
with the, total value of the chattels, and
where there was evidence tending to show
that the destruction was not total, ana that
the plaintiff had so voluntarily abandoned
what remained, it was error to instruct the
Jury the measure of damages was the
market value of the chattels before their
Scott against Burriu. Error from Cedar
county Affirmed. Opinion by Chief Justice
Norval. 't't
Where a party to a judgment rendered
by justice of the peace files an undertake
ing for an appeal within ten days after the
date of the Judgment, but rams TO nle a
transcript of the proceedings In the district
court within thirty days next following the
rendition of the judgment, the appellee may