Omaha daily bee., 1905-07-17
SUPREME COURT sYLLABl

1858. The City Of Beatrice against
G. Division No. O.
/. Where negligence is the ground Of the
the fault for his injury to the defendant,
and Tor this purpose he must show the cir
cumstances under which the injury oc-
CURED, and II from these circumstances
as presented by the plaintiff Il so clearly
appears that the minds OF all Reasonable
the fault was mutual or, in other words,
that contributory negligence must be inn
evidence disproved his right % recover, and
on his own proof he should be non suited;
but where the proof which he offers in sup
port OF his case shows him free from fault,
or where II only tends to show contribu-
bs men might y n Ss Sr As to- 10 tbe son
cluslon to be drawn therefrom. then the
case should 60 TO the jury the defendant
negligence on the part OF the plaintiff but
being entitled in that regard to the benefit
tsnd nns to ' establish that fact. ' p'''''''
2: One using the sidewalks OF 2 city viii
not be excused from reSSSisSsy casting
contributory negligence is not imputable
to him as a matter Of law from the nero
that is obstructed or otherwise out OF re
pair. provided the obstruction or other
ligence would reasonably believe that, with
proper care and caution he could pass
ws P fsty Wn The rS defect from
CoIfax. Judgment Of the lower court
modified and cause remanded. Barnes J.
]. The district court may enter a judy
ment nunc pro tune on motion and notice,
and the fact that the application therefor
is not made for considerable time after
the Judgment was rendered, does not de-
prive the court OF jurisdiction.
2. plaintiff In foreclosure suit who
appears to have been diigent In endeaVor-
| Ing to subject the mortgaged property to
the payment of the mortgage debt and
| procure a deficiency Judgment and who, 70
| That end has proceeded as rapidly as Ine
| nature of the case and the rules OF pro-
cedure will permit, can not be said to be
g. An entry made by the clerk Of the dis
| trict court which has been held by TINS
| court insufficient to constitute final judg-
| ment. is not sufficient to constitute par
| to an application for the entry OF a )udB-
| ment nunc pro tune
4. Such a judgment however, must con-
! form to, and be no broader in its terms,
than the judgment actually rendered; ana
| where the decree SO entered contains nnu-
1 lngs not supported by the evidence intro
| duced on the hearing OF the application Tor
| it's entry, 1t will be reversed as to such
1885,. Goddard against State. Error
| Chase. Reversed and remanded. Barnes, J:
| L. In a criminal prosecution the accused
| by demurring or pleading not guilty TO the
! information valves all detects or irregu-
| larities therein which may be excepted OF
| objected to only by motion to quash or
q An information charging desertion Of
wife and child, based on the provisions OF
|
1903, is not bad for duplicty, and motor
| to require the state TO elect on WhlcL
charge II WliI pP1seeusen %hi f nII ne To- state
that the accused has willfully and without
| good cause neglected and refused to main
| tain or provide for his wife Is not sum-
cient to charge the crime Of wife deser-
| ton. Cuthbertson against State, Nebraska
l0l; Northwestern Reporter, 1881, followed
| l. On the trial OF charge OF vile de-
| sertion the state, as in all other criminal
cases, is required to prove every element
g. In such a case in order to sustain a
conviction the state must prove that the
accused is possessed of money, properly Or
other means available for the support OF
| his wife, or, II he is without such means,
that he has at least some earning capacity
| and his refusal without good cause to
| maintain or provide for her.
| 1858. Chicago, Burlington & Quincy Rail
road Company against Troyer Error from
| Hamilton. on rehearlng. Former tudg-
| ment Of aff1rmance adhered to. Holcomb,
| .. ]. Barnes, J3~dissenting.
l. sPte ecSou sbipners 5a Sc or Contract for
| the purpose of attending to and caring for
the live stock being shipped on such train
sustains the relation to the carrier OF pas,
senger but in a restricted and modified
| Ca,5 Such a person while SO travelling as
| sunes such risks and inconvenience as
| necessarily attend upon caring for such
stock and such as are incident to the means
the operation OF its freight trains, and as
| thus modified the liability of the railway
| company to such shipper Tor personal IN
juries by him sustained, by reason Of the
negligence of It's employees Is that OF car
bJ shipper thus travelling on freight
train carrying live stock does not assume
| the risk of negligence by the carrier, out
only such dangerS as result from ms Pc,
Cc.j In such a case the duty devolves
degree of care, skill and diligence for the
safety Of the passenger practically consist
ent with the efficient use and operation OF
the mode of transportation adopted.
g. In an action for damages for negli-
gence against railway company for per-
sonal injury to shipper OF stock, Tidins
with a moving switch engine in the yards
of the defendant company It is made to
tin was being carried came into the defend
ant freight yards about midnight and that
fore proceeding farther on his journey The
way car on which he had been riding was
left about thirty car lengths from the
other one To reach the other way car the
plaintiff and other passengers were re-
Sred the 70 T Pask '6 on %heb e stood and a9
other track eight feet distant. The dis
lance between cars or engines on these two
adjacent tracks was four feet. While walk
ing along the train and toward It's head
where the other way car was supposed 70
be, switch engine tE P PaSSed tse 6 P1asnI
| direction; and about the time he reached
the head of the train on his way to the
other way car, the same switch engine re-
turning and moving in the same direction
overlook and struck him inflicting an In
fury which is sought 10 be compensated in
damages; held, under the evidence that the
question OF the alleged negligence OF the
company was a matter for the jury to de-
terniine under proper Instructions OF the
court and that the evidence Is sufficient TO
warrant a finding that the defendant com
pany was guilty OF aetionable negligence
which was the proximate cause OF the In
| fury complained of.
a Held also that the question of contrib
utory negligence was for the Jury, and
that under the facts and circumstances
narrated In the opinion, 1t cannot be said
| as a mattor Of law that the plaintiff
was guilty of contributory negligence so
as TO preclude a recovery on the cause
OF action stated IN his petition.
l. Error cannot be successfully predi-