Omaha daily bee., 1905-05-18


the motion could have been filed expired
! Tuesday Wednesday morning counsel for
Barker submitted an application for leave
to file a motion for rehearing. The court
allowed the application to be filed. but
overruled It as intending to delay the car
rying out Of the former decision.
User Of stock Pass. Passenger.
The court has adhered to its former
judgment in the case Of the Burlington
Railroad company against David c. Troyer.
error from Hamilton county. Judge Barnes
dissenting. Troyer while travelling on a
stock shippers pass. sustained personal
| injuries. In the lower court judgment was
given against the railroad The supreme
court holds that under the evidence the
I question of the alleged negligence of the
company was a matter for the jury to
| determine and that the evidence is sur
hcient to warrant a finding that the de-
| fendant company was guilty OF actionable
negligence, which was the proximate
cause of the injury complained Of The
court says that it cannot be said as a
matter of law that the plaintiff was guilty
| of contributory negligence so as to pre-
| clude a recovery. The court holds that a
person while travelling on freight train
on a stock shippers pass for the purpose
| of attending to the live stock being shipped
sustains the relation to the carrier of pas
senger, but in a restricted and modified
sense.
stock Yard Not Comm Carrier.
In the case of the Burlington railroad
company against Powers, error from But
Ter, the court reverses the judgment of the
! lower court on the ground that the evidence
is insufficient. The cause is remanded for
further proceedings. This was an action
F1, 49,, Lot,
railroad company's pens at the town of
Thedford were decayed and rotten and
were unfit for use and that the plaintiffs
cattle broke out of the yards and he was
forced to expend considerable money In
employing herders to search for the ami
mails, thus causing delay in shipment.
verdict for $3.50 was given in favor of the
plaintiff in the lower court. The court
holds that railroad company which con-
structs yards by the side of it's track to
facilitate the loading of stock is not re-
sponsible as a common carrier for stock
placed in such yards for subsequent ship
ment. but subject to the right of the ship
per to remove the stock from the pens
for feed and water before the shipment is
actually made. In such a case the La
bility of the company is no greater than an
ordinary depositary or bailee.
Had Right to Try CrOSs1nR.
The supreme court holds that Nels Math-
sien was not guilty Of negligence in at
tempting to cross tho street car tracks at
Twentieth and Leavenworth streets in
Omaha when he saw a car approaching and
believed that there was sufficient time for
him to get over the track before the car
arrived. His estimate of the distance
proved a little faulty and the car struck
the rear wheel of his wagon. The case
hinged on the plaintiffs judgment of dis
tance. the Omaha street railway company,
defendant, alleging that the plaintiff was
guilty of negligence. The court holds that
the question is not whether the plaintiff
ought not have seen the car at greater
distance, but whether he was guilty of
negligence in attempting to cross with the
car at the distance it actually was when
he saw 1t.
Omaha Not Liable for Boys Death.
The city of Omaha Is held not liable for
the death of Austin Reeder, 9-year-old
boy, who was drowned in pond near the
intersection of Seventh and Center streets
The pond was formed by an embankment
made in grading Sixth and Center streets
and because of that fact the boys father
sued the city for damages on account of
the death of his son. The court holds that
some direct connection between the injury
complained of and the negligence of the
city must be shown in order that the plain
tiff may recover. Because there was no
direct connection between the negligence
charged against the city and the accident to
the boy the district court properly directed
a verdict in favor of the city of Omaha.
Porter Must Pay II Back.
Former Secretary of State Porter must
repay the state 1923 collected by him as
fees for recording brands during his term
of office, according to the decision of the
supreme court Affirming the judgment of
the district court of Lancaster county. The
court adheres to former decision in the
case in which It held that the law giving
Porter the fees was unconstitutional as
adding to the emoluments of office. In the
former trial the case was reversed because
the Judgment included the bondsmen,
against whom there was no cause of action
because the official in accepting the IL
legal fees acted outside the duties of his
office Under the law Porter was to have
20 per cent of the fees. The court in the
former decision held that he would not
be held liable for that portion which he
had paid to the recording clerk in his
Office.