Union Pac. R. Co. v. Kinney

• Decision Date: 04 March 1896
• Citation: 66 N.W. 449,47 Neb. 393
• Parties: UNION PAC. R. CO. v. KINNEY ET AL.
• Court: Nebraska Supreme Court

47 Neb. 393

66 N.W. 449

UNION PAC. R. CO.

v.KINNEY ET AL.

Supreme Court of Nebraska.

March 4, 1896.

Syllabus by the Court.

1. If a bill of exceptions has not been authenticated by the certificate of the clerk of the trial court, as required by law, matters contained therein will not be considered or examined by this court.

2. Errors must be affirmatively shown by the record; if not, it will be presumed that the proceedings of the trial court were correct.

Error to district court, Kimball county; Neville, Judge.

Action by J. J. Kinney and L. D. Sherer against the Union Pacific Railway Company. Judgment for plaintiffs. Defendant brings error. Affirmed.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

H. D. Rhea, for defendants in error.

HARRISON, J.

In this action, in the district court of Kimball county, the plaintiffs (defendants in error) sought to recover of the Union Pacific Railway Company, as damages, the value of a gray stallion, alleged to have been struck and killed by a locomotive on a portion of the company's line of road in Kimball county, Neb., it being further alleged that the striking and killing of the horse were due to the negligent and careless manner in which an engine and train of cars were operated and handled by the employés of the company at the time of the occurrence. Issues were joined by the pleadings filed by the parties, and a trial resulted in a judgment in favor of the plaintiffs in the action. The company presents the case here for review by error proceedings. In view of the disposition which we have, after examination, determined must be made of the case, a further or more extended statement is deemed unnecessary. In the argument in the brief filed by counsel for the railway company, it is urged: (1) “The court should have granted defendant's request to direct a verdict for defendant, or its motion for new trial.” (2) “The fifth paragraph of the petition declares: ‘Where the killing of said stallion occurred was in the county of Kimball, and in the state of Nebraska, and at a point about one and one-half miles west of Kimball, in the said county and state; and at said point there is a public highway running along said railroad track; and said defendant has carelessly, negligently, and knowingly utterly failed to construct a fence along said railroad, or in any manner protect stock from straying upon said track.’ The evidence, as will be seen by referring to the preceding abstract and bill of exceptions, conclusively establishes that a fence had been erected by the plaintiff Kinney on the south side of defendant's right of way, and the public highway running along the said railroad track upon the south, said highway partially on defendant's right of way, leaving it between the fence and the road.” (3) “The court erred in that by the third instruction it charged the jury that: ‘The building of a fence on one side of a railway company's right of way by the owner and occupier of the lands on that side, does not release the company from its duty to build a fence on the other side of said railway company's right of way.’ ” (4) “The uncontroverted evidence shows that the plaintiff Kinney, in permitting his stallion to run at large, was guilty of a breach of section 91 of the Consolidated Statutes (Cobbey's Ed.).” (5) “The court erred in overruling the objection of the defendant below to the several questions put by the plaintiff on rebuttal to L. C. Kinney, Charles E. Cronn, and J. J. Kinney, as follows. * * *.”

To properly determine the force of each of these questions raised by the assignments of error, a reference to and examination of the testimony introduced during the trial of the case, or portions of it, is made necessary. Attached to the transcript is what purports to be a bill of exceptions, and to contain the evidence; but it is not authenticated by the certificate of the clerk of...