Omaha daily bee., 1906-05-26
SUPREME COURT SYLLABI

The following opinions were fled April
Shepherd Error. Lancaster county. On
sedgwlck. G. j.
/. The rule that the burden of proof
upon the issue of negligence does not shift
during the progress of the trial, but rests
throughout upon the party alleging such
son, and well supported by authority, and
rule
2. When it appears in an action against
common carrier for personal Injury
caused by the negligence of the carrier
Inat some defect ia the appliances of the
conduct OF its business contributed to the
accident which caused the injury COM
on the part Of Phe caer arises Is snS nS
Tess there is evidence against the presump-
ton 1t will be sufficient to establish the
allegation OF negligence of the carrier.
j. IL Is erroneous to refuse to instruct
the jury that the party alleging facts
from which a presumption of negligence
would arise has the burden of proving the
existence of such facts.
142G. Nebraska Mercantile Mutual In
Boone Reversed and remanded with in,
structions, jackson, C. Division No. q
!. a preponderance of the evidence is
puted fact in a civil action, and an in
struction which informs the jury that IL
upon any reasonable hypothesis fact
can pe accounted for upon any other the
CRY than dishonest one, they should so
md Is violation of that rule and in
this case reversible error.
1910. Missouri Pacific Railroad Company
against County of Cass. Error, Cass Re-
yersed and remanded. Oldham, c. Divi-
1. Under section 10. chapter xvii OF
the Compiled Statutes (Cobbey's Annotated
statutes, 800, II is the duty of railroad
company 10 make and keep in repair suit
able crossings, with approaches notwith-
sksah sniig the highway was laid out after
ties are required to build that part OF the
highway within the right way which
they would have been required to make had
ex rel Lancaster County against CHICAGO.
d5uLnston Quincy Railroad Company,
~ Neb., 4 II followed and approved.
Under the provisions OF this section OF
the statute railroad company cannot re-
cover damage from county for the cost
posts, building wing fences, plankinR the
track and constructing the necessary APP
proaches at public crossing.
O. compensatory damages should be al
lowed for the land taken from the right
of-way for a public road.
4 Where. In making the. proper ap-
proaches TO the railroad, track, Il Is neces-
sary to grade through all, or nearly ali.
the width Of the rlght-of-way on either
should be allowed such sum for damages
as the county would have been compelled
to expend In grading the public road had
lEA. Nuckolls County against Guthrie a
Co. Error, Nuckolls Reversed and re-
manded. with instructions. Jackson c.
Division No.
L. Where water is diverted from its nat
ural channel by means OF a canal con-
structed ana operated TO supply power for
mill, II is the duty Of a min owner to
erect and maintain suitable bridges for the
convenience Of the public at any point
where the canal crosses a public road and
mandamus will lie 70 compel the perform
1924 F1ke against OFT Error Thayer
Afflrmed. Albert q Division M
= Petition examined and held good as
against general demurrer.
Assignments, based on rulings upon
objections TO an amendment 10 the reply
and motions directed against the amended
reply, examined, and held. that the err
rors, II any in such rulings, were cured
by the charge TO the jury.
B. The reception OF incompetent evidence
tending TO establish a certain fact, Is not
prejudicial error, when the came fact is
eonoiusively established by competent evi-
deRcs.
4 The doctrine OF the ostensibIe author
| ity OF an agent can be invoked only by
such as have dealt with the agent on the
/ faith OF his ostensible authority.
3. The mere fact that one loans money
/ to another, wherewith 10 buy land, gives
/ the lender no equity In the land bought
1 Herewith by the borrower.
| g. Evidence examined, and held sufficient
to sustain the verdict.
7. transcript on appeal should contain
i the judgment or order sought TO be re-
Verssd or modified. and In addition thereto,
/ only such matters as may be necessary TO
present the rulings sought 10 he reviewed
| to include other matters H. a useless exc
pense and tends 70 obscure the real quss-
lions presented