Omaha daily bee., 1909-07-31
WEBSTER sTA.-I5rH & WEBSTER
SUPREME COURT SYLLABI

1906. Skallberg against Skallberg. Appeal
from Phelps. Appeal dismissed. Dean, j.
l. An appeal viii be dismissed where the
record does not disclose the rendition of a
final order or judgment.
Z. A judgment awarding partition and ap
portionment of shares to the respective
parties is not a final order Of judgment
from which an appeal may be prosecuted.
z ). Where an appeal in partition is prose
cuted to this court before the trial court
has acted upon the report Of the referees,
snch appeal will be dismissed.
1918. Modlin against c. l.. Jones g. Co.
Appeal from Adams. Affirmed. Reese,
c, j.
/. In an action for damages for personal
Injuries caused by the breaking and failing
OF an elevator upon which plaintiff was
being carried in the performance of labor
on behalf of his employer, the pleading set
out in the opinion held to embrace the ques
ton Of negligence on the part Of the en-
ployer In the matter Of appliances provided,
or the want thereof, for the safety Of per-
sons using the elevator in the course Of the
employment.
2. All questions of fact and the weight of
the testimony ~ witnesses are, under pr per
instructions of the court, for the considera-
ton or the jury hearing the case on trial.
3. Although a witness may be cOntradictel
by other witnesses, even of a greater num-
Der, yet the testimony of such witness Is
for the consideration OF the jury and the
receipt thereof is not erroneous nor can the
court say that the jury should ignore II.
4. Where a witness has been permitted to
testify to immaterial facts and his testi-
mony throws no light upon any controlling
question involved ii will not require a re-
versal OF the judgment where il clearly ap.
pears that the testimony given could have
no effect upon the final decision Of the case
and could work no prejudice TO the losing
party.
8. Plaintiff testified that Immediately upJn
the occurrence Of the accident a son of the
owner OF the property where the accident
PENDANT in the suit, IF you had fixed this
when wanted you to, this wouldn't have
happened and defendant "scOwled ami
shook his head, but said nothing, the evil
the consideration Of the jury, although
denied by both father and son on the wit
ness stand the jury being the judges OF
the Credibility of the witnesses.
8. There is no fixed rule as to pre-
vious training or experience Is necessary 70
qualify one as an expert witness. The ques-
ton as TO his competency 10 testify Is.
primarily, for the court upon objection
being made. II no general objection is made
TO the competency OF the witness, his testi-
mony goes to the jury, who must be the
sole judges OF It's weight.
T. In the closing argument OF counsel for
plaintiff he stated his claims as to the rule
to be applied In the measurement OF dam
ages and 70 which counsel for defendants
objected as being a misstatement OF law.
The objection was oveTruled, the court stat
ing that the jury would be instructed az TO
the measure OF damages. An instruction
upon the subject was given. The verdict
showed that the jury were not influenced
Dy the contention OF COUNSEL. l4tlus ludl
such contention. even IL improper, did not
vitiate the verdict.
S. Where interrogatOries requiring speciai
findings were submitted TO the Jury and
their answers were not inconsistent with
the general verdict, a new trial will not be
ordered where upon immaterial subjects the
Jury answered they did not know"
9. Where the evidence Is conflicting. or
where different minds might arrive at diff
ferent conclusions from the facts proved
and the reviewing court might not have
agreed with the jury In the first instance,
the Judgment OF the trial court will not be
reversed for that reason alone.
1915. Cram against Chicago, Burlington