Omaha daily bee., 1908-09-26
SUPREME COURT SYLLABI

1870. Kraus against Clark. Appeal from
Sherman. Affirmed. Root. c. Division
No. 2.
]. I'm the trial Of a case the party first
required to produce evidence is entitled to
open and close the argument" zweibel
against Myers, 50 Neb. 294.
3 Where testimony is conflicting and It
Is fairly submitted TO the jury, a new trial
will not be granted, II there is evidence
enough to sustain the verdict, even though
this court might differ with the trial judge
and the jury as to the weight Of the evil
dence.
8 A new trial will not be granted upon
the ground Of rewly discovered evidence,
where such evidence is merely cumulative,
and would not in all probability affect the
result, II a new trial were granted.
4. Where a party forgets the presence o.
a witness to an important conversation
trial on the ground Of newly discovered evil
dence. relying upon the testimony of such
witness.
s. Evidence in this case examined and
held sufficient to sustain the verdict Of the
jury.
1874. Jensen against Palatine Insurance
company. Appeal from Boone. AffirmeO.
Calkins, c. Division No. 2.
!. A clause stipulating for the forfeiture
of a contract should not be aided or given
effect by construction in a case where The
plain meaning Of the language used does
2, A stipulation for the forfeiture of
Of the insurer inconsistent with mis- right
or intention to claim such forfeiture.
3. Where the value or a STOCK OF mer-
chandise is a relevant fact and no more
accurate evidence is under the clrcum-
stances obtainable, the owner Of such
stock and witnesses acquainted with the
value Of the different articles of which
II is composed and who have observed the
same for the purpose of estimating the
value thereof may give their opinion
4. Where the value Of the goods de-
stroyed is greater than the amount Of in
surance thereon, such value is immaterial
to the risk and the making by the assured
otter loss of an affidavit In which the
value is overstated Will not constitute a
defense to the action upon the policy ,un--
der a clause providing that the same shall
be forfeited in case of any fraud or false
matter relating to the insurance either
before or after loss. Sprinfleld Insurance
loved. -" II"
5. The provision of an insurance policy
that the assured shall In case OF loss SUP,
by, a denial Of all liability under the
policy and a failure to demand such eX-
animation until long after the commence
ment of the action on the policy:
8: The provision o ina in a policy v of fire s,x IN,
days after due notice and, satisfactory
proofs of the same are made by the as
waived by such action Of the insurer as
valves proof OF loss. and IN such case
interest res sh9Hid be F1ipo fnd frpm tne C %SSe
lowed.
1879. Buel against, Chicago, Rock Island
q Pacific Railway Company. Appeal from
Lancaster. Affirmed. Reese, j.
!. In an action. against a railroad company
for damages to crops and live stock result
ing from high water alleged to have been
caused by the negligent construction of an
embankment and changing the course Of
the flow Of water in a stream. on plaintiffs
land, the two principal questions involved
were as to the nature and extent of the
rainstorm which caused the increase OF the
flow of water down the streams, whether
the rainfall was Of such magnitude as could
not have. reasonably, been anticipated, and
therefore the injury should be attributed
to the act of God, or, whether the alleged
damage was caused by the negligent con-
struction of the embapkment and damming
Of the stream The evidence upon notn
propositions was somewhat conflicting.
They we're submitted to the trial jury under
proper instructions. Held, that the ques-
tons were for the jury to decide and, OH
review. the verdict thereon was final.
2. In such a case the defendant requested
the court to instruct the trial jury, that
where the answer of the defendant con-
tained a denial of negligence In the con-
struction of the embankment ard damming
the stream and changing the water course,
the burden OF proof was upon the plain
tiff to show by a ~preponderance OF the evil
dence hat the rainfall was not unprece-
dented ard so unusual as not to have been
reasonably contemplated at the time of the
construction of the embankment.' The
court refused to give the instruction. Held,
no error, the burden being upon the defend-
ant to maintain the defense.
3. The railroad of defendant was con-
struc:ed across plaintiffs farm in 1928.
There were two streams upon the land and
which were crossed by the railroad, suit
able pile bridges being placed across each
stream. The distance between the streams
upon the land was about one-fourth OF a
mile. II 1898, both bridges were removed,
one of the streams filled up so as to effec-
tually dam the water and a new channel
was cut along the upper side of the rail-
road track, changing the flow of water into
the nthaT gt reg n above the railroad and a
new bridge, much smaller In capacity than
either OF the former ones, was constructed
flow of both. No complaint was made by
plaintiffs as to the construction or capacity
of the former bridges. In 1902, during or
after a heavy rainfall, the opening at the
new bridge was Of insufficient capacity TO
permit the water to pass and the land above
the embankmeLt was overlooked and the
crops and property of plaintiffs were de-
stroyed. The action was founded upon the
alleged negligence of the defendant In clos
ing the one stream, the Increased height OF
the embankmert. and the failure to provide
a sufficient outlet for the accumulated
water. The defendant requested the court
to submit to the jury the question as to
whether the changes made in the embank-
ment in 1873 were skillfully and carefully,
or n~egligently and carelessly made. Inc
court properly refused to Sc instruct as
there was no issue Of that kiEd before the
suitable instructions.
4 "The SUBMISSION of questions to the
jury Tor speclal lnulhBs u Hlat'eI VIII
in the discretion OF the trial court, and the
submission or refusal to submit such ques-
tions will not be reviewed except for abuse
OF discretion" Reed against McRill, IL
Neb., 206, 80 n. W., 175.
3. The evidence showed a loss to the
plaintiffs of thirty-five acres of oats of
the value of $4,000, fifteen acres OF wheat
In the shock of the value of $1,000, eighty
five acres OF corn of the value OF $4,000.
besides meadow land and some live stock.
Held, that a verdict finding damages, in
| Guiding interest, to be $685. 80 was not eX-
cessive.
6 where property is destroyed by the
negligence OF another the owner will be