Omaha daily bee., 1896-10-24

the faith OF his promise, be deemed n
liens for labor and mnterlal SO furnished
gSsSn., SSsSS RSGn n,, Msan9WgttsSo'qyins g company
Halbert against Rosenbalm. Error from
Washington county. Affirmed. opinion by
An application to have the witnesses ex-
cluded from the court room, during the
progress OF the trial OF The cause n which which
TO the sound discretion of the trial Judge.
Where request on such action Is refused
there is no available error.
2. A verdict upon conflicting evidence,
with sufficient evidence to sustain IT. VIII
not be disturbed.
g. In an appeal from the county court to
the district court the cause must be tiled
on the same issues as were tried In the
county court. unless some new matter has
arisen since the trial there such as pay
ssbroodsr s%Sbnt etc % FnIer Nnh s Johnson against
a. The general rule is, that In an action
the measure OF damages in the event OF Il
recovery, is the value OF the note at the
time OF Its appropriation with interest
8 A promlssory note which provided FOR
Interest annually, on the principal sum
evidenced by 1t, had been for n number
OF years In the possession of one who 1t was
determined was not the owner of IT, or en-
titled to its possession, but who. during
the time he had the note in possession, coI-
lected the annual installmcnts of interest
as they became due, and APPROPRIATED them
lie and could be maintained In favor OF
the owner of the notes, for the agsreEate
amounts of the payment OF interest so Col-
lected against the party VINO received and
appropriated them.
g. Alleged errors In relation 70 me eNciu,
sion of evidence examined and held, that II
any errors In the action of the court. mas
much as evidence of a like character ana
to the same effect Of that excluded was
admitted apparel in other portions of
the evidence, both prior and SUBSEQUENT
to the time Of Its exclusion, they were
Missouri Pacific Railway Company
against Geist Error from Douglas county.
Reversed and remanded. opinion by Judge
II is provided in section 1Oi of chapter
"a bell of at least thirty pounds weight
or a steam whistle shall be placed on each
epge n and ssa 81 Ss fun eshv Gy
rods from the place where the said rail
road shall cross any other, road or street,
shall have crossed said road street. un-
der a penalty of $50 Tor every neglect to
be, paid by the. corporation owning the
former, and the other half to this state,
and also be liable for all damages which
son of such neglect"
2 Under the foregoing provision. in an
position at distance from n street or
road crossing, of less than eighty rods
i would have been proper to instruct Ia
should have been rung or the whistle blown
from the starting place until the engine had
crossed the road or street. But under the
existent circumstances II was not an error
which calls for the reversal of judgment
for plaintiff, that the judge instructed the
cause the bell to be rung or the whistle to
be blown at a distance of at least eighty
rods from the place, where the e,,rinr raliroad nl
whstling until II shall have crossed such
street. without further informing the jury
that IL the bell was rung or the whistle
blown from the starting nOint. If In
the case at bar, but some sixty or seventy
feet distant from the crossing II would
have fulfilled the duty.
3. The jury was informed by one portion
of an instruction given, as follows: "But
defendant is not required 10 both ring the
bell and blow the whistle. but must do one
or the other, a failure to do either, under
the statute, renders the defendant Grim
inally liable" Held That the portion in
which the jury was told that for a failure
to perform the designated duty the de-
PENDANTS became criminally liable, was i'm
proper in this; civil action for damages,
and calculated to misead the jury in esti-
mating the damages to be allowed. IL any,
and hence prejudicial to the rights of de-
fendant.
4. "The failure of a railroad company TO
cause n bell to be rung n whistle to be
sounded as its engine approaches n street
or road crossing is evidence which tends
to prove negligence on the part OF the COM
pany. 1t may, but does not necessarily
demand an inference of negligence" 1t
does not establish negligence as IA matter
of law, and II is error for the court to in
struct jury that such failure on the part
of the company constitutes negligence and
tenders IL liable. Rule announced In
Chicago, Burlington Quincy Railroad
company against Metcalf, a Neb., Sis and
o. r. V. X. Co. against Talbot, 67 n. w.
Rep. 500, approved and followed
Rosecrans against Assay. Error from
Sheridan county. Affirmed. opinion by
Judge Norval
In replevin special damages must be
pleaded by the plaintiff, or they cannot
be recovered.
g Held that the petition Is sufficient,
after judgment, to sustain the findings.
g. Damages held not excessive.
T. Affidavts used at hearing of
motion for n new trial cannot be con-
sidered I'm the supreme court in error pro-
ceedings, unless made part of the record
by Il bill of exceptions.