The Minneapolis journal., 1905-11-24

no legal obligation to maintain the crossing
as it extends over the track in good condition
for general public
Second-When the planks of the crossing are
removed by the company, with the knowledge
or express or implied consent OF the ownerS.or
the land the company is not liable for injuries
to a third person using the crossing for his
own benefit.
Order affirmed. Brown, ].
John h. Allen appellant, vs.. Theodore Knutson,
respondent.
Syllabus: Where chatte1 mortgage is at
tackled fraudulent by subsequent good-faith
purchaser of the mortgaged property 1t is COM
petent for the mortgagor to testify whether the
mortgage was without consideration and given
to delay defraud his creditors, tho his declara-
tions in that respect, made out Of court, might
not be competent.
Order affirmed. Brown, ].
NJ. Schernak. respondent, VS.. st. Paul Fire &
Marine Insurance company, appellant.
Syllabus: Ffrst-The evidence justified the
jury in finding that the fire was not caused by
+ the instrumentality of the insured, and that he
did not fail to make reasonable effort to save
the property insured. .,. -
second-The court did not abuse its discretion
to receive evidence to the effect that the insured
had scattered oil the walls of his living
rooms, situated fifty feet distant from the barn.
1t was collateral matter, having no direct bear
| ing on the point at issue.
Third-The court instructed the jury that IN
considering the defense. they should be salts
| ned by preponderance of the evidence that
respondent either directly indirectly caused the
nre. and In stating that the court had so often
| explained to them the meaning of ''preponder-
| ance OF the evidence" it was not necessary to
oWell upon 1t. This was not error, for it will be
presumed that the jury understood what was
meant by preponderance of the evidence. and
II II counsel for appellant had any doubt upon
| tnat subject 1t was necessary to call special
| attention to it under the rule of Steinbauer VS..
| Stone, So MINI. ga
Fourth-1t was not error to instruct the jury
for ,lap% 1l1
, Tor the entire amount of the policy no Issue
having been made by the defense at the trial
that 1t was entitled to any reductions by reason
OF the fact that the insured did not take res.
sonable steps to preserve the property after the
fire started. - :
order affirmed Lewis, j.
State of Minnesota, respondent. vs.. Josenb
Gardner. appellant.
Syllabus: Technical errors in rulings on evil
oence which do not result in prejudice to the
accused and which can in no reasonable Sway
aheet the result Of the trial, are not sufficient
basis for granting new trial in criminal prose
lowed and applied
In trial for homicide in which there is an
attempted justification by self-defense. it Is
reversible error to charge that such justification
cannot De made out unless the accused in GOO 4
1alth endeavored to escape, altho the jury was
aiso instructed that he was not necessarily
pounu 10 retreat, where the proven circumstances
preclude any practicable means of escape or re-
treat without great increase in peril of death
OF OF great bodily harm.
Inc application of the doctrine of ''ret-,at
to the wall" originating as il did befo a lie
general Introduction of firearms, has due refer
ence 10 the difference in danger between hand
to-hand encounter with fists. clubs or even
Knives and an encounter in an open space. in
volvlns the use of repeating rifles by men ex-
perlenced in handling them.
In this an instruction az to the dutv n
escape was not applicable to one of the state;
l theories OF guilty, namely, that the defendant
went to the residence of the deceased with II
uenoerate intention OF killing him and finding
him at work in his curtlage Immediately shot
b1m; because no question of self defense was in
yolved.
Nor was such charge applicable to its otbe,
tneory, based on defendants own statements tC
tne sherlf and county attorney whom he sum
moned to the scene of action and to whom tt
T narrated its details. and on his own simila1
!. testimony the witness stand in his own h.
{ halt. According to that narrative, two resoIutt
and nelghborng froniersmen quarreled over :
e crop or hay. Knowing of repeated threats b.
b the other to kill him the defendant went, at tn
request of, to the place of the deceased tax
Ing with him his rifle, in accordance with til
] custom OF the wild and unsettled country an
t also compass and auditors hay receipts wit
which to settle the dispute. The deceased. Z
: WORK IN the open space about the house. wa
0 shot and killed while attempting to get his gun
near at hand, after the first words of address h
e the accused: An attempt to escape would hav
e resulted IN an unequal duel. If the defendan
e was justified In shooting he not required b
d the law to make futile attempt at escape.
i Under the circumstances of this case the tria
p | court properly charged that the defendant coui
= not have been convicted of manslaughter.
"efefsed. "a III -Jaggard, J..
e Kettle River Quarries company, appellant rs
City of East Grand Forks. respondent
e Syllabus: Ting failure of a city to reouire
Il Il oond from contractor to pave streets unde
=, . an entire agreement, void because in excess O
n the authorized limit of municipal Indebtedness
= does not render the city liable under chapte
. . 52l, laws 1901, for that neglect to person fun
&c n1sh1nS materials. under a subcontract Sectio
- y OF chapter $50. laws of 1903. validating sue
- contracts and authorizing the payment of indebr
- edness already issued. does not impose libai
- 1ty on the part Of the city to such subcontracto
o ordef afhrmed. -Jaggard, J.
10 Elizabeth Grace. appellant, VS.. John Grace. r,
y spondent.
y Syllabus: A husband and wife had for man
10 years occupied homestead premises yvhic
n from their ma ture not capable of partitio
10 by allotment in kind AS part of a settiener
r In divorce proceedings the husband decided thr
N third person undivided half interest therei
1t to his wife. an the wife continued for SON
T. time to live with him on the premises as bom,
ut stead. Held, the wife cannot upon leaving hi
Tor alleged valid justification acquire the rigl
in 10 partition the premises still occupied by hi
n as a homestead.
,e Neither husband nor wife can dispose nv sa
l. or conveyance of a homestead right without I'll
:. express. consent of the other: what, neither
able to do directly. neither will be permitted
do indirectly by sale or partition
rg Judgment affirmed. -Jaggard. ].
): i i CIVIL SERVICE RULES q