Omaha daily bee., 1912-03-11

trtEtle bridge and has so continued e
now. and the trtetie bridge as originals
| Duut was large enough TO allow arnpis
l opportunity for the Hood waters Of tn
stream TO escape when they overflowe
/ the banks OF the ditch, the duty OF the
railway company with respect to keep
ing and maintaining a sufficient opening
to permit the waters of the stream 70
pass become the same as II would be
IL the extended creek channel had been
| the natural channel. and IL any damages
were caused by the careless and negii-
gent obstruction Of proper passage
way the railway company would be
liable for such damages
| 3. II, however, IN such case. the filling
up OF proper and sufficient waterway
for the food waters was not occasioned
by distractions negligently permitted 10
remain In and about the tfestle. but was
caused by gradual deposit Of silt
brought down through the extended chan
mel Of the creek and by which gradual
deposit the elevation Of a portion Of the
land above the trestle not upon the de-
fendant's right-of-way was raised to
such an extent as to prevent the flood
waters reaching the trestle at the time
OF the damages complained OF. then the
defendant cannot be held liable for such
damages.
4. II is the duty Of county authorities
under chapter 50. Comp. St.. 1907. to keep
the channel OF county ditch free from
distractions.
s. Where crops are destroyed by the
negligence Of railway company In per-
hitting waterway which II was Its duty
TO keep open to become obstructed, the
cause Of action for such damages accrues
at the time the crops are destroyed.
s. Where the answer alleged that at the
time the crops were planted the plaintiffs
knew Of the conditions and that in all
probability they would be destroyed by
flood waters, II Is not error TO permit an
amendment to the reply sewing forth
that before the crops were planted the
defendant company through its agent
promised to clear the waterway so as TO
drain the plaintiffs lands. and 10 admit
IN evidence proof tending to establish
such promise.
Z. The purport OF certain letters set
forth In the opinion, held to afford no
evidence OF ratification Of such a promise.
Where the main point OF contention
is whethe. the damming OF the food
waters was c8used by the defendant
come obstructed, or whether the filling
In OF the trestle was owing 10 natural
causes, and the evidence Is conflicting.
this question Of fact should be submitted
TO jury for Its determination.
i7o0 Neice against Farmers Co.
Operative Creamery and Supply COM
gany. Appeal from Douglas. Affirmed.
I. An empioye in business in which
steam boiler Is used 10 not a mere
iicensee IN going into the boiler room
where conyeniences for the use Of the en-
ployes are established and they are &C
customed to use the game with the knowl-
edge and consent Of the employer.
Under such circumstances. II an en-
ploye remains In said boiler room during
the rest hour. with the implied permits
sion OF the employer. he Is entitled TO the
I4..A aIa.TA nsaA
II IL question for the jury. upon sub
stantially conflicting evidence, whether
the employer has so consented.
3. IL the employer is guilty OF negh.
gence by which an employe Is injured
while In such boiler room II Is immaterial
that the employer did not know that the
employe was In the boiler room At that
particular time and liable TO be injured
by such negligence. II 10 sufficient II he
knew that the employees were at times
properly IN said boiler room.
4. II the employer allows an incxperi-
enced man 10 operate the valves OF
steam boiler and let the steam pressure
with such force into q steam trap as to
cause an explosion Of the trap, and the
trap IL shown by the evidence to be OF
proper construction and suitable for the
purpose for which II was Intended. and
the gauges upon the boiler for determin,
ing the steam pressure are 50 placed
that the operator cannot observe them.
Il Is proper 10 submit 10 the jury the
question OF the employers negligence as
g. II " not reversible error to instruct
the jury that the employer should take
every reasonable precautlon TO safe
guard his employees, II the instrucuops
as whole fully and properly define
& Defendant offered 10 prove By the
physician's statements alleged 10 have
been made BY plaintiff to the physician
some time AFTER he treated him TOT the
injuries complained Of; held that u va
this evidence as privileged under the cir
cumstances stated IN the opinion
Z. Upon the evidence indicated In the
opinion Il 10 held that the verdict for
$500 damages is not so excessive that
this court must say as matter OF law
that the Judgment Is clearly wrong.
i6e5s. Peterson against Purinton. Appeal
from York. Affirmed. Fawcett
A Judgment will not be reversed on ac-
count OF harmless error.
I72Z7. Haas against Mutual LAfe lnsur.
ance company OF New York. Appeal from
Douglas. Reversed and remanded' Le,'oh'
J. IIamer, j. not sitting.
L A petition was filed against Mutual
Life Insurance company OF New york.;
the summons and return thereto named |
the party defendant In like manner. The |
proper name OF defendant Is The Mutual
Life Insurance company OF New YORK.
The summons was served upon the man |
aging agent Of defendant. Defendant |
made a special appearance Directing TO
the Jurisdiction. Before the obpjections
were submitted the plaintiff filed mo-
tons TO amend the petition, summons.
and return by correcting the name OF the
defendant. These motions were sustained
The plea, to the jurisdiction was then
overruled. The summons was served be-
fore the bar Of the statute OF limitations
had fallen: the amendment was made
thereafter Held. that II was not enron
eous 10 allow the amendment to be made.
and that Il related back to the date OF
the service Of the summons upon the
proper person,
Z. A general demurrer TO a petition was
sustained IN the circuit court Of the
United States and the plaintiff given
leave to amend: an amended petition was
then filed containing additional allega-
tions: a general demurrer was filed to
shia r.atltioa btt while the demurrer was