21. CONVICTION FOR LARCENY-A conviction for larceny will not be
reversed on the ground that the evidence is insufficient to show
that the property found in possession of accused was that
which was taken if there is evidence to support the finding of
the jury. State of Iowa v. Miner, 656.
22. DEMURRER-Where demurrer to a petition is sustained, and
plaintiff files an amendment repeating all the allegation of the
original petition, and adding others, which are stricken out on
motion, and demurrer is then filed setting up the same grounds
as the first, appeal may be had from the sustaining of the second
demurrer.-Koboliska v. Swehla, 124.
23. EVIDENCE-Objection to the admission of evidence will not be
considered on appeal, where the essential facts clearly and
properly appear after disregarding all evidence of doubtful
character.-Talcott v. Noel, 470.
24. FINDING OF INSOLVENCY-A finding that a judgment debtor “did
not have sufficient property remaining to pay his debts" is not
objectionable as being insufficient to support a decree finding
insolvency.- Bank v. Johnson, 365.
25. HARMLESS ERROR-A reference in the statement of the issues to
the jury to allegations which are not submitted to the jury
because there are no proofs in regard thereto, is not pre-
judicial.-Brennecke v. Heald, 376.
26. INSTRUCTIONS--Appellant cannot complain of an instruction
which was good as far as it went, since if he desired further or
more explicit ones he should have asked them.--Keyes v. City,
511.
27. SAME-If an instruction appears to be erroneous as applied to
all the facts disclosed by the record, the supreme court will
not refuse to reverse merely because the abstract does not
show that it contains all of the facts.-State of Iowa v. Miner,
656.
28. Issues-Where the pleadings are not all before the appellate
court it cannot determine that the issues did not warrant the
decree.-Bank v. Johnson, 365.
29. TRIAL DE Novo--A proceeding to set aside a distributive share
is not triable de novo.--In re Lund, 264.
30. Striking Evidence--Where (the evidence having been strick-
en) appellant submits with the case a motion to consider the
cause on the evidence, because appellee filed an additional ab-
stract setting out matters contained in the transcript which,
however, brings no evidence into the record, and appellee
argues the case on the theory of the evidence being out of the
Small figures refer to subdivisions of Index. The others to page of report.
record, the court will not reinstate the evidence and take the
case where appellant objects to further argument on part of
appellee.-Bank v. Johnson, 365.
31. Waiver-Where evidence of waiver is introduced without
objection, was admissible on whether there was a necessity for
a demand and the case was tried on the theory that it was not
necessary to plead it, the propriety of admitting the evidence
will not be reviewed.-Bɔnniwell v. Madison, 85.
32. SAME-Where a decree for plaintiff provided for deposit of a
deed and for certain payments within thirty days, as a condi-
tion to the relief sought, which included the establishment of
a judgment lien in his favor, by complying with the conditions
of the decree, and taking out an execution on the judgment,
he did not waive his right to appeal as to the costs.-Mountain
v. Low, 403.
PRESENTMENT-See NOTES AND BILLS, o.
PRESUMPTIONS-See CRIM. LAW, 4; DEEDS, 1; EVID., 31; JUDGM'TS,
1; PRACT. SUP. CT., 18, 20; TRUSTS, .
PRINCIPAL AND AGENT-See BANKS, 3; CONTRACTS, 1, 2; EVID.,
LIENS; MUN. CORP, 7; PLEAD, 13; PRACT., 31; RAIL, 13, 14; SALES,
6; TELEG Co., 1.
PROBATE JURISDICTION.
The district court has jurisdiction to determine the validity of
mortgages held by the decedent against legatees, though it
could not decree their foreclosure.-Prouty v. Matheson, 259.
PROBATE LAW--See ESTATES OF DECD, 2, 6; JUDGMENTS, 2;
PRACT. SUP. CT. 29; WILLS, 3, 4, 8, 9
PUBLIC POLICY--See INSURANCE, 10.
QUIETING TITLE.
Fictitious Grantee-Laches - Plaintiff, claiming title to land under
a deed from H., alleged that M., the common source of the
title, made a deed to D. under the assumed name of S, that S.
deeded to plaintiff and that a deed from S. relied on by defend-
ants was a forgery. Held, that where plaintiff and H. had paid
no attention to the land for twenty-three years, until just
before the commencement of this suit, during which time
defendants and their grantors paid taxes, made valuable im-
provements, and spent large sums in acquiring their title,
plaintiff's claim, in view of his unexplained laches, supported
Small figures refer to subdivisions of Index. The others to page of report.
only by the testimony of H., could not be maintained.-Holman
v. Winterboer, 270.
RAILROADS-See CORP. 2; EVID., 19, 25; INSTRUCTION, '; MECH.
LIENS, PLEADING, 1, 14; SETTLEMENT, '.
1. Bonds-A terminal railroad and warehouse company, the pur-
pose of which, as stated in its articles of incorporation, is the
construction, maintenance and operation of one or more lines
of railway within the corporate limits of a city, with all neces-
sary side tracks, depot, yards, warehouse, storage house,
elevators, and all other terminal facilities, is a railroad cor-
poration within McClain's Code, section 1965, authorizing
railroad corporations to mortgage their property, including
their franchises.- Beach & Weld v. Wakefield, 567.
2. STATUTES-Code, 1873, section 1061, limits the amount of indebt-
edness of corporations for pecuniary profit to two-thirds of
their capital stock. Acts Twentieth General Assembly, chap-
ter 22, provided that such statute should not apply to railroad
companies' bonds issued to a stated amount per mile of track.
Acts Twenty-first General Assembly, chapter 57, made this in.
applicable to bonds or debentures of any corporation secured
by actual transfer of real estate securities of equal value, which
securities were first liens on lauds of double their face value.
Held, that the latter proviso was applicable only to a special
class of investment companies, and that the said provisos did
not take out of the statute a terminal railway company which
executed bonds and a mortgage on its property exceeding in
amount two-thirds of its capital stock.-Idem.
Burden of Proof-See post 23, 24.
Concurring Negligence-See post 25.
Contributory Negligence-See post, 5, 11, 12, 17.
3. Evidence-COMPETENCY-Cross-examination—A witness who
has testified that he acted as fireman for the deceased from
June to September preceding the accident, which occurred in
January, may be asked whether or not it was customary before
inspecting the engine to move it away from the train, and if
his answer can be construed to apply to time of which he has
no knowledge, the fact in that respect may be brought out by
cross-examination.-Gibson v. Burlington, C. R. & N. R'y Co.
4. CONTRIBUTORY NEGLIGENCE-In an action for the death of a
locomotive engineer killed by running of the engine while he
was inspecting it by cars coming in contact with it, a witness
who has testified that he had made one run on deceased's train
before his death, may testify that on that occasion the deceased
Small figures refer to subdivisions of Index. The others to page of report.
took the engine away from the train before inspecting it, where
the deceased's failure to move the engine away before inspect-
ing it is claimed to constitute contributory negligence.-Idem.
5. Plea and Proof-A railroad company may in support of a plea
of contributory negligence in an action for the death of an en-
gineer caused by cars coming in contact with his engine while
he was inspecting it, prove that there is a rule that if an en-
gineer goes into a dangerous place about his engine he is to
notify all persons working about the train, although such rule
has not been pleaded, and though the rule was not a formal or
printed one.-Idem.
6. EXPERTS-Expert testimony is admissible on whether a broken
axle might derail an engine, and on whether certain peculiar
actions of the engine indicated a broken axle.-Brownfield v.
Ry. Co., 254.
7. FINDINGS-A finding that deceased could not have seen an
approaching train had he looked, is sustained where there is
evidence that the view of the track was obstructed by a corn-
crib and section houses.-Pratt v. Ry., 287.
8. HARMLESS ERROR-Where the evidence showed that inspection
of an engine in the manner made by an employe was danger-
ous, admission of expert evidence that it was dangerous was
not prejudicial, though it was not shown that the experts were
competent.-Gibson v. Burlington, C R. & N. Ry. Co.
9. JURY QUESTION--Whether a fireman was justified in remaining on
the engine when the engineer continued on his run after notic-
ing unusual actions of the engine in running over the track,
the cause of the unusual actions being unknown to the fireman,
and whether the derailment of a train was due to a broken
engine axle are jury questions--Brownfield v. Railway Co., 254.
10. Same--Where it appeared that a team became unmanageable,
the question whether the fright of the team was increased by
the negligent sounding of a whistle, and whether it was negli
gent not to have a flagman at the crossing, are jury questions.
--Pratt v. Railway, 287.
11. Negligence--A servant is not necessarily negligent in adopting a
dangerous way of accomplishing a task when a safe way is
open to him, but the question is one of fact to be determined
according to the circumstances of the case, the reasons for do-
ing what was done and the care used to avoid danger.-Gibson
v. Burlington, C. R. & N. Ry. Co.
12. Same--Whether an employe, in making choice of methods for
performing his work, used ordinary care and prudence to pro-
Small figures refer to subdivisions of Index. The others to page of report.
tect himself from injury was a question of fact for the jury and
not a matter of law for the court.-Idem.
13. Fellow Servants-Agency-Where an employe of a railroad
company, riding on a hand car, strikes at another, who in an
attempt to avoid the blow, pushes off a third employe, who is
run over, the injury is not a willful one.—Kincade v. Chicago,
M. & St. P. Ry. Co., 682.
14. SAME-Where an employe riding on a hand car struck at another,
who, in an attempt to avoid the blow, pushed of a third
employe, who was injured, the company is not liable, though
the injured employe was operating the car.-Idem.
Findings-See ante".
Harmless Error-See ante, post 18.
15. Instructions-An instruction that if the circumstances and
surroundings of the railroad crossing at which plaintiff's intes-
tate was killed were such that, with the signals given of the
approach of defendant's train and the speed the train was
going, persons at and near the crossing using ordinary care to
learn of its approach had reasonable warning thereof, defend-
ant was under no obligation to check the speed of the train,
does not place too much stress on the giving of signals where
there is evidence that the view of the crossing was obstructed
and that the train was running at a reckless rate of speed; and
where there is undisputed evidence of such obstruction the
court may assume its existence.-Pratt v. Ry, 287.
16. SAME-Where no city ordinance requires a sounding of a whis-
tle a failure to charge on the duty to sound such whistle is not
error in an action for injuries within the limits of such city.—
Idem.
17. SAME-In an action for injuries received by a fireman in inspect-
ing an engine, where there was evidence to show that it was
his custom to notify other employes that he was about to inspect
the engine and that he failed to do so at the time of the
accident, a charge that such failure was contributory neglig
ence was properly given.-Gibson v. Burlington C. R. & N. Ry.
Co., 596.
18. SAME -Taough the question whether it was the duty of an em-
ploye to use reasonable precautions to do his work carefully
for his own safety was one of law for the court the employe
was not injured by a charge submitting that question to the
jury.-Idem.
19. SAME-An instruction in an action against a railroad company
for the death of an employe, alleged to have been caused by a
Small figures refer to subdivisions of Index. The others to page of report.
|