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About Omaha daily bee. (Omaha [Neb.]) 187?-1922 | View Entire Issue (March 18, 1911)
Tim BEE: OMAHA, SATURDAY, MAKLll 18, 111 1.
HOITRBAli TO UVRHPOOW OLUSOO'
funjinrLWH ans norron a omnow
alandla aoanarr, akortaat paaaasa, tow lalaa,
Ant RHi titnt, o
AXJA.N iu., nri mH
I I JukM Blvd.. CaloaaB.
WANTED TO BUY
UKHT pro-, yatd ' d band furniture
aarpata, slotluug and iboM 'iei avii.
HARD- train wheat makes Updike's
I'noe of Omana Hour. If k'. C. Jacobson,
1718 Ohio hi., wnl bring this ad to The iiee
within three days ana Identity himself h
will r'ivc an oroer for a 1-pound sack
of this firm flour.
WANT to buy poolhall or small restau
rant business or would rent hotel furnlsiied.
a,. fc1-'u'i. Kearney, Neb.'
WANltU TO RENT
Jf'OIt llh.JS'1 CHiveral aorta oi land in
Nebraska or Iowa 10 pai ly vnu isu prove
tnat mere la a betlvr candy maue man
U Brlen a 11 jno. t.. Lrei. 2w do. loin
tt..-wlll bring tins ad to 1 lie Mee wlinni
three days and identify himself, he will
receive an order lor a oOo boa of this fine
WANTE1 Hoard and room In private
family by young woman employed; stale
terms. H liwz. lie.
CPDIKE'8 I'rlde of Omaha Is umaiia
flour. umahaiiS prefer it. If Waltor u.
tteaman, lal Cass ht., will urlng tins ad
to 1 he. Bee within S days and Identity him
self he will receive an order for a im
pound sack of this fine flour.
WANTKU to rent, barn, near 16th and
Webster, lor horse and wagon. Call Doug
EVERT up-to-dats grocery sells Updike's
Pride of Omaha flour. If Thos. Byrnes, 2918
Bo. Wth hC, will bring this ad to The Bee
and Identify himself be will receive an or
der for a 12-pound sack of this flour.
NICE a-roora house, unfurnished; within
walking distance of business district. K
CAM Webster XJ6 for repairing, plaster
Uig, brick and cement work.'
COMPETENT nurse immediately. Web
BTKNOtiRAFHEU Young man with ex
perience in law office would like position
aa stenographer: salary secondary consid
eration; all opportunities considered. Ad
dress M. U. 1., Box i. Belleville, Kan.
POSITION by thoroughly experienced
bookkeeper sou accountant; good lefar
eooea. Address B life. Be.
POSITION as nght watchman; sober and
reliable. G-Tso. Bee.
THEY are announcing dally that they
keep Farrell'a syrup in all good grocery
stores. If Mrs. L,. tl. Downing, 2513 Cald
well St.. will bring this ad to The Bee
within three days and Identify herself, she
will receive an order for a boc can of this
WANTED A position aa a chauffeur toy
Japanese. B 7tk Bee.
YOUNO man, married, wants work; will
do anything; give references. II 7!), Bee,
EXPERIENCED chauffeur desires posi
tion driving for doctor or private family;
best ot references; no bad habits; fully un
derstands repairing. Address Y 113, Bee.
RAILWAY TIME CARD
UNION TATIOIf Tcath mm Uiaoi
tslsa Pacific '
Can Fran. Overland I,..a8:l&am all:30 pm
China and Japan jr. M.a t :s pm a n: pm
Atlantlo Kxuresa a 6:45 am
Oregon Express a 4:00 pm a 6:10 pm
Los Angeles Limited. . .al2:45 pm a 8:80 pra
T).nver tlpeclal 7:04 am
Colorado Express a 1:60 pm a 4:60 pm
Oregon-Wash. Limited. .sl2:60 pin a 1:20 pm
North Platte Local aU:66 pm a 4:4a pm
nrud Inland Local a 8:16 am alU:W am
Btromsourg Local ,.bli:41 pm b 1:20 pm
Cateaaa at North wester a
Twin City Lx press a 1:46 am a!0: pm
t-ioux City Local a 1:46 pm a l:2i pm
Minn. A Dakota Ex. ...a 7:00 pm a :16 am
Twin City Limited a 8:46 pm aV:ani
ldlnneaola Express all uv am
Carroll Local a 7 oo am a 1:60 pm
Daylight Express a 7:40 am al2:2o am
Chicago Local aU:u6 pm a :- pm
Colorado-Chicago a 6:10 pm a 1:28 pm
Chicago Special a M pm a 4:48 am
Pacific Cuast-Chlcago...a :36 pm a t.a pm
Los Angeles Limited. ..a 8:60 pin 411:30 pm
Overland Limited all:45 pm a 7:46 am
Carroll Local a 4:30 pm al0:10 am
asl Mall a 8:30 pm a !: pm
Unooln-Chadrun al:wtni all :00 am
Norfolk-Dallas a 8:00 am aiu:4i pm
Norfolk-Lincoln a 1:16 pm a 6:20 pm
Haslings-ouperiur b 2:is pin l a.M pm
Load wucid-iioi cspilngs..a 3:ii pm a pm
Casper-Lander a a.ao in nU:w un
t seuiont-Albion b :M pm b !. pm
K. O. St. 1 Ex a 1:24) am a 7:40 am
K. C. bl. L. Ex.. ex
cept baturday aU:16 pra a 6:60 pm
K. C. A at. L. Ex., bat
urday only 12:00 pm
Chlcaga, Mllwauku Jt at. iaal
Overland Limited all. 43 am a 7:61 am
Omaha-Chluago fa.x b 7:U am.
ouiaiia-bavannali Local. a am all 46 pm
Colo-Cal. Expieas a s:Utf pm a 3:26 pm
Colorado bpeoiai a a. 42 iiu a H.ou am
Parry-Oinana oLcai o 6. Is pm blu.Ou am
Rocky Mountain Lid. .. .al2:68 am al0!46 pm
Chicago Day a.xpreaa..a .o am a 4: pm
Chicago Local k" aaa biu:ss am blu.ls pm
Dee Juuinss i-ocai j'ss..a s.vu pm au:o pm
Ciucajko oxpiess a w p
Cbiaa Lliuitua a S.us piu a u aut
Chi. -Neb. Ltd., Uncoiu.a 11:20 am a 5:47 pra
Colo. -Cat. Lxpreaa a 1:A pm a 4 J pm
Okl. 4t Tex as a.Apieaa..a t.U pm
ttocky Mouuuuu .ta....aiw.M piu
1 :Ai pm
Oniaha-lil. Louis Ex. ...a I0 pm a : am
Mall and Kxpreas ni.ttmii aii:L pm
autub y Lui tiiuiu CUlliMNpin blv.U am
Chicago Express ....
Mmu.-oc tsui u.x..
MUU4.-01- rata iau
.a 7:00 am a 3:46 pia
.a s:uu put a :uo am
. u i uw aut
.a put a s.w am
cava treat i rater.
Chicago Limited ..
Twin lily Liuuittu
U wiu Cll IfaXplaaS
.a 6.48 pm
u 4 .wu tm a , :im i
. -ju am a M put
a ,i; put
toerllaslaa kuuau tuik sail Maaua.
Xenvr California a .w pm a i.w pm
i'uaL Bound Express.. a 4.1U put a 1:4a um
Seoiassa putliia a - am a put
Mlaca Hlila a 4.10 put alto pm
Lmcotn stall u l.M pm alJ:U pin
Northwest Expruis ....all.ou put ai:00am
! ISaoiaaaa uoifeis
a am a b.lo put
.a s.la aiu a viu pm
j Kauvwsa. Lxptasa....
' LiU-oiu Local
I ' fccuuyier-r'Muiaiiiouiit
i Liu coot Locl
i l iatisiiioutn-lowa ...
Ct-utrai Nebraska ..
J Chicago Wpociat
i iJutiver bpscial
o k.i am
.b J. u pm bto.0 am
.a 7:e pin a i ju piu
.a 8.18 am a 8.60 am
.ali-tio pu, a :feJ piu
.ail. to pin all iS pm
..a I u am aH:iw pm
a i uu am
,..m 4 .0 pm ljt pm
Chlcuo fast uiM..iiimi a a.w am
tikmu Com. I l-iinUcd. 11 to i. in
lewa Local 8.16 aut alu.ai am
Craaton lia.) luteal
..a 4u pm aiv.Ai am
. .a 4 JU piu all. to aui
..aiu u piu a 4 aia
..a i aiu a UI pm
st Louia a.xpiwa .
K. C. at. 4oaapn
K. C. bt- Josxptt
t. C au J"--t
mttmimm Stall-- aaA W abater
,...b ; w pm bn 66 ai
fUous City Eipraea....b J IS pm bll 45 ara
fcious "l,y lasriger
I win t'tty I'aaaangor b i 30 am
o 4 lo pm j
b l.a pm
rMous t iy t-o ai c s ja am
Liuat soa Local b 6 64 pm b 1.10 am
(a) I ''! b Dallay except Sunday.
lu tiuadaV only.
Supreme Court Syllabi
1TTI5. While BKalnst Ktate. Krror from
Uucne. Affirmed. Keese, t J.
1. In a prnwM-iKion fr selling Intoxh-atlng
liquors In Ylolntion of Isw, It was charged
In the Information that the accused did. on
a date named, unlswfiilly Sfll to a person
designated, an intnxlcntlng and eplrltunus
liciuor. to-wlt. srtvlnic the name or qua.ity
of the liquor alleged to have been sold. Ths
proof showed the khI. that though labeled
and branded by snot her name, whW h w aa
for the purpnw of deception, the liquor con
tained to a large degree the kind and qual
ity alleged In the Information, and tnai it
was Intoxicating. Held, that the evidence
sufficiently sustained the averments of the
Information under the provlxions of section
14, chapter 6 Compiled Btstutes.
I (is. A. lash acainst cuooen. appeal irvm
Lancaster. Affirmed. Fawcett, J.
1. April 5. !!. the Irglslsture passed an
set to establish and locate an additional
state normal school; and. supposing at the
time, that another act passed April 1. l!.
cresting "the Normal Hoard of Education.
was valid act. and that such board was
the one unon which would devolve the
carrying Into effect of the said first named
art. Its name wits used in said an. &y
subsequent proceedings in this court. In
htate against Majors. KS Nebraska js, lis
N. W. 4ai, the act of April 1, lm. was
held unconstitutional and void; held, that
the act of April 6, 1W9. was not Invalidated
by the mistake of the legislature aa to
name, and that the duty of carrying it
into effect devolved upon the existing
board, defendant herein.
2. The act of April 6, 1. provided, that
cities and towns, competing for the lo
cation of the state normal school, should
file their applications with the secretary
of the normal Board of Education within
sixty days after the said act became ef
fective: held, that time was not of tne
essence of the thing to be done, and that
such provision was directory merely and
8. And the fact that prior to the decision
of this court In .State against Majors, on
November 16, 1W9, the Board of Education
waa unwilling to take the responsibility of
establishing and locating the school pro
vided for In said act, did not deprive said
board of Its right to thereafter proceed
with the discharge of the duties enjoined
by said act,
4. And the fact that the city of Chadron
filed its application with the -"Normal
Hoard of Education, ' Instead of with the
Board of Education, did not preclude such
city from having Its application considered
by the Board of Education after It had
resumed the exercise of its powers and
functions, it appearing that said applica
tion was received and filed by said board
before It had taken any action in the
6. And the failure of defendant board to
visit the various cities and towns com
peting for the location of the state normal
school and select a site for the location
of said school within ths time specified
in the act of the legislature, was im
material, aa the later visitation of such
points and selection of such site accom
plished the substantial purposes of the
6. All corporations capable of taking and
holding property have the Jus dlsponendi
as fully as natural persons, except so far
as they are restrained by statute, or are
prohibited by their articles of Incor
poration or outstanding contracts; and
under this general power a corporation may
dispose of the whols of its property for
any lawful purpose.
7. A college Incorporated by the statutory
number of resident freeholders, for "the
promotion of Christian education by har
moniously developing the moral, mental
and physical powers of those who share
Its advantages." which obtains its real
estate by purchase and receives its title
thereto in an unconditional warranty deed,
and whose trustees are elected "by the
Northwestern Association of Congregational
Churches In Nebraska." and which obtains
a considerable portion of its funds by
soliciting and obtaining "written subscrip
tions bv way of contributions from people
of all denominations and of no denomina
tion, which were given and paid in the
treanury of the corporstion without any
written condition, trust or purpose of obli
gation, except that the same "were to be
used for the purposes of the corporation
In purchasing land, erecting buildings, put
ting thoni up and supplying the school."
does not thereby become a religious, sec
tarian or eleemosynary corporation or In
stitution, so as to preclude a sale by the
trustees of said corporation of any or all
of its properly, real or personal, which
sale will not divert the property from the
purpose for which It was obtained and used
by such corporation.
8. The evidence examined and set out In
the opinion as to the acts of the board of
education, defendant herein, subsequent to
the decision of this court In Utate against
Ma.lors. In relation to the establishment
and location of an additional normal school
at Chadron. held, within the scope of the
powers delegated to such board by the act
of Anril 5. 1909.
16141. Meflahev against Citlrpna" Railway
Appeal from Lancaster. Affirmed. Root, J.
l. ir the driver of a vehicle at a street
intersection is reasonably Justified in be
lieving that he can pass over a street
railway track before sn approaching car.
f propelled at its xisual snd ordinary rat
r speed, will teach that point, he should
not he held, as a matter of law. guilty of
negligence in attempting to cross.
lh.'.;i. McCoy sgainst Cltv of Omaha. An
peal from IHjuglas. Affirmed. Sedgwick. J.
1. The inavor and council of cities of
the metropolitan class had power under
the act of ls:ii to prescribe by ordinance
duties of the Hoard of Pubrto V.orks not
pecirud In the statute.
l he ordinance, of the c tv of Omaha
directing the Board of Public Works to
SEALED BIDS WILL BE RECEIVED
for moving school house from I.smro.
Tripp county. Bauth Dakota, to Winner,
Tripp county, booth Dakota. Distance
bout 2H miles. Bids will be opened Anril
10. mil. Contract will be let to whom the
board considers the lowest responsible bid.
der. For further particulars and Informa
tion address, J. T. TREZONA, Clerk School
District ISO. AI, Winner, South Dakota.
y Ml2d 7t
Across the Ocpnn
Palatial, modern strainers
Maals a la carte
with eery comfort snd
ronveiiience. W trek-as aud
subiimnne I rim In.
l ravelcra' checks.
riir ailhira to London,
I'arn an 1 hrcman avaty
T ii ead n f .
A-l niitll teamrra to Lon
S'n. I'Hiit ami hiaiueu atary
li.-.iiuiiuneaji farts srary
Hulttiiiiirv- Hrnn.ona rtaai
CNn IMitirU eStoaaSaya.
around is Worm lnt,
Pcypt aud Far
Last by Com
era. oailCBS t CO.. Ges. Istt I Brssdway. New Verk
R. CLAD SSEN ICS 4k CO.
ralcssa. r l.aeal Aseata.
St. Lawrence Rente to Europe
.uu th&w roui.
'SAT! AT SUA"
KOTAIi MAXu ITItMIBI
Montreal Quebec Liverpool
"Laurrotlo" a art "Me cautic"
Largest aad Most amodara HLaautars In
Canadian hervu-a Luxurious ac oru -ii.odaUoas
ljr first, Vecoad attd Yaixa
Claaa. cUcilltig in coujuncttoo with laa
Popola Xwtm Sors-w taaaiars
Tsatutuo" "Vaaada" T'otiuutos'
Cairyiu' Oil Ctaaa Caiia paaaugena
mum STiaia ' aaioi. cojulurt at
ncaa. Xiao Tmird Claaa f-itnarra
Applr Compauy'a Otfica ao-411
lMra BL dttcag-xi, as Irftrat A4Td.
SCANDINAVIAN UIEKICA LI.E
H.400-MavTla-aer raawnor simrt. c:r rt
. r . nten. Mar.
9 l nltd Kiat, A,r. i
and Denmark " A"
ouia uiuiiiui av c y Ti.tjan. Mar 4
All teaaiani aqiitppad with Marooal WtraUaa.
rlrat l abia. 7fc p; aainnit cabla. lit
A. B. Joaasoa a Co., 1 road way, u. T.
or la fctcaj acaaia,
l F. Titen. Mar. Ii
advertise for bids for street Improvements
was within the power of the ma or and
council and valid.
3. A notice Inviting bids for street Im
provements, signed by the chslrmsn and
secretary of the Board of fiibllc Works,
will be presumed to have been authorised
by that board in the absence of evidence
to the contrary.
4. It wss not necossery thst the city
council should fix a definite time and plnce
for property owners to file protest against
a street Improvement, or to designate their
choice of materia). The statu-., of 1S7
frovlded that thirty days should be sl
owed for those purposes sfter the publi
cation of the ordinance suthorixlng the
Improvement, and if such time wss allowed
before proceeding with the Improvement,
the statute w-as complied with.
5. The act of lT required the council
to sit aa a Board of K'luallsatlon of spe
cial assessments en tertaln specified days,
and to give notice of such sitting "for at
least six days prior thereto." Notice given
for six davs Immediately prior to one of
the days fixed by statute lor such sitting
that on said day so fixed by statute as
sessments in a c-rtaln specified diBtnct
would lie equalised wns sufficient.
. Under tho statute notice of the sit
ting of the council as a board of equaliza
tion mlsht be given by the Board of Pub
lic Works when specifically directed by
the mayor and council to give such notice.
16.243. O'Connor against Waters. Appeal
from Dakota. Affirmed. Boot, J., Keese,
C. J.. not sitting.
1. The direct, clear and uncontradicted
testimony of two disinterested witnesses to
the effect that a fathr, subsequent to a
son's majority, promised that If the son
would remain at home and care tor nis
parents during their natural life he should
have a definitely described tract of real
estate and testimony that the son for over
twenty years and up to the time his pa
rents departed this lire, periormea nis
agreement, may, if believed by the court.
support a decree for the specific perform
ance of that contract.
2. In such a case if the other children
claim the real estate under their father's
will, but do not plead that the farm was
their ancestor's homestead at the time the
contract was made, and no usch issue is
tried in the district court, the defendants
will not be heard in this court to urge that
16.248. Bulgrln against Bchlechte. Appeal
from York. Affirmed. Kawcett, J. lleese,
C. J., not sitting.
When the only Question presented on
appeal to this court is one of law which
has already by freuuent aecisions oi inis
court become the settled law In this state,
it will not ordinarily be again considered.
K.iil. Aurora Btate hank against iiayes
Eames Elevstor company. Appeal from
Hamilton. Reversed and action dismissed
as to Hayes-Lames Elevator company and
M. Wagner. Costs taxed to plaintiff.
Barnes, J.. Reese, C. J., not sitting.
1. Payment by a bank of a check drawn
upon it does not constitute such bank a
holder within the meaning of the negotia
ble instruments' law tl'oinp. rU.. lis, cli.
41, art. il, sec. 80), providing that an In
strument is negotiated when it is trans
ferred so as to constitute the transferee a
holder thereof. National Bank of Com
merce against Farmers and Merchants
National bank of Lincoln, Neb., followed.
2. Payment by a bank of a check drawn
upon it, in the usual ODurse Bnd In the
absence of fraud or mistake of fact, ex
tinguishes the Instrument and the bank
hv thereafter DUttlns: it In circulation can
not create a liability thereon against its
maker or prior endorser.
lWasl Hlglnbotham against McKenxle.
Appeal from Adams. Affirmed. Hedg
When the owner of real estate authorizes
several respective brokers or agents to sell
or exchange the same, but gives neither an
exclusive agency, the agent or broker who
actually effects the sale or exchange Is en
titled to the commissions. The agent under
such contract, who negotiates with a pur
chaser but does not effect a sale, cannot
16.261 Chapln against Village of College
View. Appeal from Lancaster. Affirmed.
Hoot, J. Heese, C. J., not sitting.
1. A Judgment of the district court in a
proceeding prosecuted under section 101,
article 1, chapter 14. Complied Statutes, to
exclude territory from the boundaries of a
municipal corporation, will not be set aside
on appeal unless it is made to appear that
the trial court committed an important mis
take of fact, or made an erroneous infer
ence of fact or of law.
2. And this rule applies with peculiar
force where the trial Judge Inspected the
premises before rendering Judgment.
ItiJtU. State against Village of College
View. Appeal from Lancaster. Affirmed.
Hoot, J., Keese. C. J., not sitting.
1. A nonresident owner of agricultural
lands illegally included within the bound
aries of a village may maintain proceed
ings by quo warranto for the purpose of
preventing the municipality from exercis
ing Jurisdiction over his real estate.
2. But in such a case the relator should
not prevail if he and those under whom
he claims title for Blxteen years after the
municipality under color and claim of
right assumed to treat said property as
purt of the village, stood by without sub
stantial objection until streets were graded
and a permanent sidewalk built so as to
connect the relator's property with the
built-up part of tho village and his land
lies between the business section of the
village and the only railway within its
Ii429. Piper against Neylon. Appeal from
Lancaster. Reversed and remanded. Rose,
J., Fawcett, J., not sitting.
In a suit on an unpaid, past due negoti
able promissory note, it is error for the
trial court to refuse a request for a per
emptory instruction in favor of plaintiff,
where the uncontradicted evidence of wit
nesses who&e credibility is not questioned
shows that plaintiff Is a bona fide holder
of the note and that he purchased it for
value before maturity without knowledge
of any Infirmity therein and of facts In
dicating bad faith in taking it.
177. Alt against state. Error from Hall.
Affirmed. Rose, J. (Sedgwick, J., concurs
1. In a criminal prosecution the trial court
in giving instructions may describe the of
fence in the language of the statute.
2. In changing the Jury it la not neces
sarily Improper to make quotations from
the statute under which defendant is being
3. 1 he act granting to electric power com-
panlt-t the right to use public highways for
poles and wires (Comp. St. ch. 2ba, sec. 1),
does not apply to telephone companies
whose operations are confined exclusively
to telephone service.
4. Where a telephone company constructs
Its lines along a public highway in a
proper manner under the terms of a legisla
tive grant and uses them in the public ser
vice, a railroad company has no authority,
either by Itself or by an employ, to treat
the wires at a railroad crossing as a nui
sance and cut them down, if they do not
In any way endanger railroad employes or
Interfere with the moving of trains or with
the railroad right of way.
6. In determining the respective rlgnts
of a telephone company and a railroad com
pany at a place where the telephone wires
on a public highway cross the railroad right
or way, the rights or the public as well
as the property rights should be considered.
. W here the evidence in a criminal prose
cution will sustain a conviction for the of
fense charged in the information, it Is error
to direct an acquittal.
7. "The fact that a defendant was acting
as the agent of another In the commission
of an offense will afford no excuse or
Justification for the act In a prosecution
therefor." Allyn against state, Jl Neb. bS3.
8. In original law "malice may denote
that condition of mind which Is manifested
by the intentional doing of a wrongful act
without Just cause or excuse.
9. In a prosecution against a railroad em
ploye for cutting telephone wires on a high
way at a railroad crossing, the trial court
properly held the Jury was Justified In find
ing that defendant, though following the
instruction of his employer, did not act
without mellce, where the proof showed
thiit the wires did not In any way endanger
railroad employes or Interfere with moving
trslns. or with the rallroed right-of-way,
and thst he had been told by an agent
of the telephone company not to cut the
wires and had been warned of the con
seouences. Iftmo. Keck against Anderson. Appeal
from Wayne. Affirmed. Sedgwick, J
Reese. C. J.. not sitting.
1 Four signers Uon a petition for saloon
licenses had Jointly purchased a lot in the
principal part of a small village for tTiUO;
had paid IJM In cash and had given notes
for the l.alance. When tliev purchased the
lot they did not know tlu the partv for
whom thev slxned would be, an applicant
for license. Held, that they were free
holders and competent to srn as such.
t. The fact thst purchasers of real es
tate knew that such purchase would qiialifv
them to sign petition for saloon license and
that thev desired to be so qualified and
did sign the petition for the applicant for
license soon after obtaining their deed
would not disqualify them ss such peti
tioners if they In fact purchased the real
estate in gooLfalth as an Investment and
th same wit rsW he'd by hem (
ir.'ni i.rsH,a aaalnst Chlcaco. Burling
ton C'liinev Kaiiroen coiooacv. .-i..,r.,,
from Red Willow- Affirmed. Fawcett. J.
Tyegat propositions not germane io too
. , ,h, under review will not
1 la the Jiitv or a railroad rnmpanv.
engsaed s a common carrier, rs-cvlving
freUlit to he trani-port.ed. to arrv It with
out unnecessary de'av. A delsv of twentv
four hours st a station on ths way la an
unnecessary rlelav. unlesa It Is ennlaired
and eicuaed bv omething which the law
recognises aa sufficient- Coder the evl-
ilence In this case the excose that the com-
psny had annulled a regular freight train
uheduled to leave a connecting point an 1
hour after the arrival of a car of horses
at such a point, held, not a sufficient ex
cuse. . When a shipper of live stock Is pro
vided by the railroad company with free
tiansportatlon for a caretaker snd the
caretaker actually accompanies the stock
during the entire time ot such shipment,
the carrier has a right to rely upon Hie
caretaker to notify Its sgents In charge
of Its train whenever he thinks the neces
sities of the case require the unloading or
feeding, and watering of such live stock.
1. ' ttrfore error can be predicated upon
the failure of the court to present a par
ticular feature ot a case to the Jury', the,
party complaining should, by an approprl
sto Instruction, request the court to chaigo
upon that festure." German National
I snk of Hastings against Leonard. 4u Neb.,
5. A Judgment will not be reversed be
cause the trial court refused to give an
instruction asked, when the substance of
such Instruction is Included in other in
6. "A common carrier of live stock can
not, by contract with a shipper, relieve
Itsolf, either in wholo or In part, from lia
bility for injury or loss resulting from lis
own negligence." Chicago, Rock Island ft
Pacific Railroad company against Witty,
H2 Ntb., 275.
7. it is tne duty of this court. In review
ing a case on appeal, to disregard any
error or defect In the proceedings in the
court below, which does not attect tne
substantial rights of the adverse party;
and, in obedience to that duty, no judg
ment will be reversed by reason, aluno,
of such error or defect.
X'aSZi. btackhouse agfiinst htackhousc.
Appeal from Harlan. Alfirmed. Barnes, J.
Keese, C. J., and Sedgwick. J., dissenting.
L In an action for a divorce on the ground
of adultery it is not always necessary lo
show the overt act; the charg-s limy be
sufficiently proved by the evidence of such
circumstances as will leud a Just and
reasonable man a mind to the conclusion
2. Evidence examined, the substance of It
stated in the opinion, and found sufficient
to sustain the Judgment.
I'i244. I'nlon Pacific against Stnte. Error
from Buffalo. Affirmed. Rose, J. Reese,
C. J., not sitting.
Where a city, under power expressly dele
gated by the legislature, passes an ordi
nance regulating the location of stock
yards the regulation stands on the same
footing as a statute and will not be de
clared void as an arbitrary or unreasonable
interference with the rights of the owners
ot stock yards under the guise of police
regulations, unless that fact is shown by
l'il'tti. Launt against Village of Oakdale.
Appeal from Antelope. Affirmed. Sedg
wick, J. Barnes and Fawcett, J. J., dis
senting. Reese, C. J., not sitting.
L In an action for services superintending
an Improvement of water works owned by
p village, such Improvement having been
completed and all other bills therefor paid
by the village board. It will not be pre
sumed that the improvement was made
without recommendation and approval of
the water commissioner, there being no
evidence so indicting.
2. If one agrees to perform a certain
service for a village gratuitously he may
withdraw such promise at "iny time before
tne same is perrormed, and notice of such
action Is sufficient if duly given to one
member of a committee of the village
board in charge of the improvement upon
which the services are performed, and if
the committee then continues his employ
ment the village will be liable for the value
or the services thereafter rendered.
NWS. Ttenholm against Kloepper. Ap
peal irom Lancaster. Atrtrmed. Root. J.
1. If an officer of a corporation orally
promises a prospective purchaser of the cor
porate stock to repay the purchase price
at any time ana the purchaser acts upon
the promise, the agreement is an original
contract and is not within the statute of
irauus. 1 he promisor does not therein'
agree to answer for the debt, default oV
misdoings of another person, nor does he
agree to purchase goods, wares, merchan-
aine or tilings in action.
2. And In such a case the purchaser is
noi estopped rrom maintaining her action
because Intermediate the date of her pur
chase and the dav she reo nested the nrmn-
itser to perform, she surrenderedjier certifi
cate to the corporation and received in lieu
thereof another certificate representing her
original purchase, ana a stock dividend
3. Where the law is not misstated by the
trial court, but a legal proposition germane
io me principles oi law announced is not
included In the instructions, a party will
not pe neara to complain if he did not sub
mlt to the trial court an instruction con
taining the proposition omitted aa aforesaid
4. "Interrogatories for special findings
may be submitted to the jury or refused In
the discretion of the trial court and unless
there has been an abuse of discretion in
that regard the ruling will not be dis
turbed." Murphy against Gould, 40 Neb,
1U333. In reappllcatlon of Metx Brothers
Brewing company. Leidy against Metx
Brothers Brewing company. Appeal from
Douglas. Reversed ana remanded with In
structions to cancel the license issued to
applicant. Reese, C. J. Barnes, Fawcett
and Sedgwlcg, J. J., dissenting.
I. A manufacturer of beer who sells his
product to unlicensed consumers for their
use. Bells at retail within the meaning of
chapter 82, Law of Nebraska, lwl.
2. A manufacturer of beer who sells his
product at retail is guilty of selling beer
without a license, and that fact being made
to appear, an excise board should not issue
a license to him In the year next succeed
ing the commission of that offense.
lGtrro. Johnson against State. Error from
Lancaster. Affirmed. Sedgwick, J.
1. An indictment under section 4 of the
criminal code should not charge in the
same count that the defendant used and
employed, and advised to be used and em
ployed instrumentsato procure tin abortion
but such indictment Is not demurable. for
duplicity since the allegation that defend
ant advised such instruments to be used
and employed does not state an offense
without alleging that some person other
than the defendant committed the act; it
is Immaterial that the defendant advised
the act which he committed himself, and
such allegation should be rejected as sur
2. If an information and an indictment
are both pending in the same court at the
same time charging the same party with
the same offense the prosecutor should be
required to .elect under wlilcii he will pro
ceed, as required by section 4.15 of the
criminal code; but that section has no
application when the defendant has waived
examination before the magistrate and has
been held to appear In the diHtrlot court
and has been indicted by the grand jury
lor the ornuise charged berore the inagls
trate. and no Information has been filed.
S. In a trial for felony the prosecution
should examine In the first instance such
witnesses as tiave of the res gestae. If such
witnesses prove hostile to the prosecution
the court has discretion to allow such ex
amination as will bring out the truth be-
iore me jury. wnen, nowever, tne res
gestae Is clearly proven, and the defendant
Is represented by competent counsel, the
court has discretion to refuse to reoulre
the prosecution to call witnesses supposed
to he Interested In the defense.
4. The trial court is not required to in
struct the Jury in ths precise language re
quested by ths defendant, though such re
quest correctly states tha lgw. If an In
struction is given substantially stating the
law as requested It Is sufficient.
6. Whether a sufficient foundation has
been la'd to admit evidence of statements
of a deceased person is a question of law
for the court. If such evidence is admitted
It Is for the Jury to determine Its reliability
6. I'nless It appears that the evidence in
the trial of a criminal case Is so deflcien
that all reasonable minds. If unlnfluon d
bv passion or prejudice, must agree that
there Is reasonable doubt of the guilt o
the defendant, a reviewing court t-anno
set aside the verdict of the jury as un
supported ty the evidence.
Ii4i Kerr against tiering Co. Appeal
rrpin ass. Judgment or district court re
versed and permit cancelled. Barnes. J.
1. A Judgment of the district court dls
missing an appeal rrotn the order of i
licensing board granting a druggists per
mlt to sell Intoxicating liquors is a flna
Judgment from which an appeal may be
taken to the supreme court, and the fact
that the district court assumes to dlrei
further action by the licensing hoard does
not deprive the aggrieved party of tha
J. The statute provides that on an appeal
from the order of the licensing board the
evidence taken before that board shall be
certified to he district court and the case
be tried there and determined upon such
evidence only; and wher an appeal is
prosecuted rrom the judgment or the dls
trict court tha clerk of that court is re
quired to certify such transcript of th
evidence to the court of review. When
mis is property none a motion to dismiss
the new appeal for want or a bill of ex
ceptiona should ne overruled.
3. Mi. h an appeal cannot be said to
nreaent only a moot nuusttun If heard dur
Ing the term ot the license or permit, un
less it appears that the sama has been
relinquished by the applicant and cancelled
Dy the action or tne licensing board.
. Where It Is shown hv i-oiuiM-tent avi
dence that the applicant for the iwnnlt
has violated the provisions of chapter sO
or the, complied statutes commonly called
ths fiocuin law. during the year pre adlns
Die fJllTrg uX. bis upUcaxlua Uis Utwurui
board bss no discretion but is bound to
ref.iae him a permit; and for the district
court to hold otherwise Is reversible error.
'.fiTl. Rtewsrt seslnst Omshs Council
Bluffs Hallway company. Appeal, Doug
las. Affirmed. Letton, J. Reese. C. J.,
1. A street railway company and an
ordinary traveler nsve equal rights of
travel on the street of a city, but each
must observe due care to avoid accidents,
taking Into account the fact thst the street
csr Is confined to the truck while pedes
tralns have freeelom of movement.
2. The employes In charge of the op
eration of a street car re held to great
caution when crossing a street intersection
at a point where a car upon the opposite
track is, or has been, verv recently dis
charging passengers. The motorman
should keep a sharp lookout, gkve ample
and timely warning of the approach of the
tar, and have it under such control that
It can be readily stopped If necessary.
S. Questions as to whether a bell was
sounded, or as to whether the rate of
speed of the car was excessive where tho
evidence Is conflicting should be submitted
to the Jury.
2. if there Is evidence tending to prove
that a heavy, unwleldlv vehicle was al
most ppon and being propelled across a
street rallwsy duck at the Intersection of
two public streets and that the motorman
in control of a street caj- approaching said
intersection at right atttrtes to the course
of the vehicle, either did not act with
reasonable diligence to dor-reasa the sliced
of said csr so as to prevent a colllsloYi,
or after the car had been brought almost
to ix standstill permitted It to start sud
denly and move at a greatly accelerated
rate nf speed so as to collide witlr said
vehicle. It is not error to submit to the
Jury the Issue of the motorman'a negli
gence in failing to control the car before,
as well as After, he was anniiaed nf tha
river's perilous position.
3. If the Pleader charees a cauaa of
action based upon the defendant's negli
gence in operating a street csr and also
siieges tint the motorman In charge, after
knowing that the plaintiff was in a dan
gerous position with respect to said car.
negligently failed to exercise ordinary care
to control it and evidence is received tend
ing to support those allegations, the case
may be submitted to the Jury upon both
4. if the defendant nlearis that tha
plaintiff was guilty of contributory negli
gence or that the accident resulted sololy
irom his negligence, the burden Is upon
Me defendant to prove those defenses snd
does not shift durlntr the trial of the case.
hut he should receive the henefit of the
plaintiffs evidence tending to prove those
5. The defendant, however. Is not nreln-
diced by an Instruction that the burden
Is not upon him to prove contributory
negligence If the plaintiffs testimony
proves that fact, and Instructions to that
effect do not Involve the doctrine of com
6. The plaintiffs negligence will not de-
f Ilegnlar price
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The Twentieth Century Farmer. $1.00
Woman's Home Companion.... 1.50
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The Twentieth Century Farmer. $1.00
Woman's Home Companion. . . . L50
Review of Reviews 3.00
unloos It wss the solo
cause of the plaintiff s Inlury or concurred
or co-operated with the defendant s neiill-
gi nee as a proximate cnuse oi mo cn-
it Is not error in withdraw from the
Jurv s consideration facts which by no rea
sonable, construction tend to establish a
defense to the action or to mitigate the
plaintiff s damages.
8. "When Instructions requested are sub
stantially given In the charge prepared bv
the court on Its own motion, it Is not error
to refuse to repeat them, though expressed
In language different from that used hv
the court.'' Curry against Htate, 6 Neb. 412.
S. The evidence examined nnd commented
upon in the opinion and held sufficient to
sustain the verdict.
ItjtiHt. Conntv of Hamilton against Aurora
National Rank. Appeal from Hamilton.
Reversed and remanded. Fawcett. J. Rose,
J , not sitting. Barnes and Root, J. J., dis
senting. 1. The purpose of article 3, chapter 18 of
the Compiled Statutes, commonly called the
depository law, was to provide a place for
the safekeeping of public money, to obtain
Interest theron where It was possible to do
so, and to relieve state and county treas
urers from liability as insurers of so much
of the public money as should be placed In
2. The treasurer of Hamilton county pur
chased, with county funds which he was
unable io place in depository banks, with
the approval and authority of the county
board, and for the sole purpose of obtaining
a safe place in which to keep the public
money, nonintereBt bearing demand certifi
cates of a bank which In goexV faith had
refused to qualify as a depository under the
provisions of article 3, chapter '11 of the
Compiled Statutes. The certificates were
treated and used as cash by the treasurer
in transacting the county business and were
paid In full on demand. Neither the treas
uier nor the hank in any manner profited
bv the transaction. Held, that the bank
was not liable to the county for Interest
upon the public money with which the certi
ficates were purchased.
16249. Westover against Hoover. Appeal
from Iancaster. Reversed. Ietton, J.
1. One who contracts to sink a well at an
agreed price per foot if he procures a sup
ply of water and not to be paid if he fall to
do so, using his own materials and ma
chinery, and furnishing hia own labor. Is
an Independent contractor.
2. A person who is in the general employ
ment of one person may be temporarily In
the service of another with respect to a
particular transaction or piece of work so
that the relation of master and servant
arises between them, even though the gen
eral employer may have an Interest in the
3. In such case the duty of using care to
see that a safe place, to work Is furnished,
or proper warning given, devolves upon the
4. Where tho Independent contract is to
be carried out on the general employer's
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5. Kvliem e examined
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16,215. O'lioughlln against City of Pswnes
Citv. Appeal from Pawnee. Afflrmei.
1. By showing that a sidewalk Is on tha
outskirts of a city and not frequentu
used by the public, the city cannot escape
liability for neglecting to repair such walk,
where It is situated within the corporate
limits of the city along a street at the
usual place for a sidewalk.
2 In an action against a city for Injuries
from a defective sidewalk proof of de
fendant S actual notice of the defects Is
not essential to a recovery, unless made
so by statute, where the proofs Justify a
finding that the unsafe condition had ex
isted for a year or more a 4ength of time
sufficient to charge the city with notice.
J. A city of tho second class having less
thnn R.OoO Inhabitants cannot escape lia
bility for neglecting to repair a defeotlxe
sidewalk, because notice of ths defect snd
of the resulting injury had not been given
according to the requirements of a char
ter applicable alone to cities of another
4. A sidewalk constructed In a city along
a public street In the usual place under
the directions of the city and afterward
controlled by It and used by the public
should be repaired by the city, and the
city may be liable for damages resulting
from negligence in falling to do so. though
tho sidewalk Is not within the llmlta of
the street as originally platted.
16.217. Hoyt against Chicago. Rock Island
& Pacific Railway company. Appeal from
Douglas. Affirmed. Reese, C. J.
A employed H as his attorney snd coir,
menced a suit in Justice court against iT"
Pending the suit B filed with papers In the
rase an attorney's leln. Before the day set
for trial and subsequent to the filing of
the statement for Hen A and C settled theli
controversy. C paying A the amount agreed
upon, which was in excess of the Hen. On
the day set for trial C did not appear when
Reapplied orally to be admitted as a party
plaintiff to the extent of enforcing his Hen
The court permitted him to do so. and upon
a hearing rendered Judgment against c
for the amount of his claim. C appealed to
the district court where B filed a petition
setting up his claim, less a credit thereon
paid by A. C answered the petition by gen
eral denial, but objected to the introduction
of evidence by demurrer ore tenns The
objection was overruled, the case heard on
the merits, and Judgment rendered against
C. Held, that while the proceedings In the
Justic-e court were irregular, the court hail
Jurisdiction of the subject matter, and the
Judgment was not void. Held further, that
the appeal by C conferred jurisdiction upon
the district court, and Its Judgment was
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