Omaha daily bee., 1909-05-22
SUPREME COURT SYLABI

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Debus against Armour & co. Appeal
Douglas county. Affirmed. Reese, g. j.
l. An employe who is entrusted by, his
master with power to direct and control the
work OF servants. and to whom Is com
mitted the duty OF seeing that the appli-
ances to be used and with which such other
servants are to work are kept In safe con
dillon, Is not, as to such duties, a FELLOW
q Under the circumstances as developed
by the Issue and evidence in this case an
instruction Is not erroneous which informs
the jury that 1t was the duty Of the mas
ter to furnish a reasonably safe working
g. Where instructions Of the court fairly
submitted the issues of fact and the law
to be applied to the jury, the verdict, II
supported by the evidence Will be sus-
Suffer against Chicago. Rock Island and
Pacific Railroad company; Appeal. Saline
county, Affirmed. Root, j.; Reese, c. j., and
Fawcett, j.. dissenting.
/. An instruction must be pertinent to the
evidence e. as well as relevs Tiat to some goss Issue sue
tend to support an issue presented by the
pleadings, that issue should not be sub
2. II is not error to refuse TO give an in
therein announced. Is included by the court
3. II the court properly instructs the jury
that the burden is on the plaintiff to make
out his case, but is silent as to the burden
resting on defendant to prove an affirma-
tive defense, and plaintiff does not request
further instructions on said point, he valves
any error the court may have made In fall
ing to instruct concerning the burden car
ried by the defense.
4. Where the issue Joined relates TO the
sufficiency of openings in q railway EN-
bankment for the escape. OF flood waters in
a creek and It's valley, PLAINTIFFS. testimony
concerning statements made by MIN TO De
PENDANTS officers charged with the duty
Of constructing said ~embankment, that IN
his opinion such openings were insufficient,
is irrelevant and properly excluded.
< Tho Antgrf In ifa higHTpftnn NAV naTmtI
Jurors to take to the jury room platS and
maps properly Identified and admitted In
evidence.
8. Where the court fairly submitted to the
jury the issues and the evidence, the judg-
ment will not be reversed for errors In
unnecessary instructions given, II from a
consideration of the peladings and all of the
evidence. It is apparent that the jury was
not misled and that the verdict returned Is
amply supported b ythe evidence.
Kerr ". McCreary, Appeal, Adams: Re
yersed and remarked with directions,
/. The purchaser at a judicial sale upon
the foreclosure of a mortgage, upon con-
firmation. acquires the title OF all the par
ties to the action and nothing more.
2. During the lifetime of the mortgage
1t is a lien on all of the interest OF the
msrtgagor, possessed by him at the exc
cution of the mortgage, and the purchasar
at the judicial sale acquires such title
only In the event that the mortgagors
grantee, to whom the equity OF redemption
NAV pccH SOlui a ONNh hi"NS N ROfy -
3, Where the plaintiff brings an action
to quiet title to real estate. and the de-
PENDANT prays to be declared the owner
and to have her right OF possession con
firmed, such prayer is a demand for af-
flrmative relief and subjects the defend
ant to the operation of the maxim that he
who seeks equity must do equity.
Robbins v. Finn. Appeal, Valley. on
motion for rehearing. motion overruled'
Anderson v. Union Stock Yards Co. APP
peal, Douglas. Affirmed. Duffie, c.
Commissioners Department.
1. Rulings which do not pertain to the
trial In such a sense as to make them as
signable as causes for a new trial, such
as rulings upon demurrers, motions ad-
called to the attention of the trial court
by motion for 2 new trial to make them
available upon appeal.
2. On a former appeal from a judgment
In favor of the plaintiff the case was re-
versed on the ground that the verdict was
ond trial OF the case the evidence. offered
by the plaintiff was substantially the same
as on the first trial, and plaintiff falling
to adduce any new material testimony.
The trial court directed a cerdict Tor the
defendant. Held, no error; =.
lille. ". Troupe. Appeal, Buffalo; Al
firmed Root. j.; Rose, J not sitting, =.
favor by the courts and will not be en-
forced beyond the strict letter OF the
agreement.
2 a lessee OF state SCnOOl lA1QE WHOSE
lease was executed pursuant to the act OF
February "a. 1888, agreed in writing tina
IF default Is made in the ~semi-annua
payments in said lease described, agree
that this leave may be forfeited by said
board without further notice TO me or az
action at law" Held, that the lessee did
statute 10 redeem from the forfeiture.
Anderson against Chicago. Burlington 4
Quincy Railroad company. Appeal, Frank
lin. Reversed with directions. Good. c.
II fg arFnr IN submit a Cluae nf actor
to the jury when there is no evidence e
sustain 1t,
2. A farmer. who is engaged in ralsine
farm crops and live stock is competent e
testify to the value OF such croIs and live
stock.
IA farmer, who has resided upon his
farm for many years, and is actively en-
gagged in agriculture, is competent TO testi
crops raised thereon by him.
"A farmer actively engaged in agrl'
culture and who Is acquainted with a par
ticular tract OF land and has a kncwledgt
OF the value OF lands In Its vicinity 8
competent to give an opinion as to thu
value OF the particular tract.
1882 Aeken against TingelhSft AppeSa
Commissioners department.
l. In an action by a wife agains
licensed liquor dealers TO recover damage.
for non-support by her husband, who wal
made an habitual drunkard either who'll!
or partially through the defendants traf
fic, II Is competent TO introduce the Carlisle
tables OF mortality as evidence of the hus
bands expectancy OF life when a sufficien
foundation therefor is laid by evidenc
tending TO show that the husbands hsb
itual inebriety has permanently impaired
his earning capacity.
2 In such action the plaintiff may prov
that necessaries were furnished the famil!
by the county and by charitable institu
tions: also may show the suffering to whicl
the family was subjected through the hus
bands neglect caused by his drunkenness
3 Liquors sold by the defendant need no
be the sole cause OF an injury 10 permit
recovery.
g. Upon conflicting evidence as 10 IN
amount of damages, there being sufficien
evidence TO sustain the verdict, a Judgmen
will not be set aside as excessive.
s. An instruction stating: III yol
further find from the evidence that prio
20 the wrongs complained OF in plaintiff
petition, plaintiffs husband was a strong
robust man. but that after said wrong
plaintiffs husband was permanently i'm
paired In his earning capacity then in de
termining the damages 10 be allowed plain
tiff. you may take into consideration IN
tables Of expectancy which have been in
troduced In evidence" Is not erroneou
because II permitted the jury TO conside
permanent impairment from whateve
cause, when the un~contradicted evidenc
showed that the permanent impairment wa
caused solely by habitual drunkenness.
bn& Kennison against State. Error fror