sence of a bill of exceptions or certificate of evidence. Kelsey v. Starkey
et al.,
6. Giving instructions.-Although a rule of court required that all
instructions should be handed to the judge before commencement of the
final argument, yet where the occasion for an instruction arises after final
argument has begun, it is error to refuse one if asked. Standard Fire
Ins. Co v. Wren,
242
7. Imperfect record. This court is bound by the record as filed.
If it is inaccurate it is in the power of the party to suggest a diminution
of the record and have the correction made at any time before the final
hearing of the cause. P C. & St. L. Ry. Co. v. Shannon,
8. Judgment in excess of ad damnum.—It is error to render judg-
ment for a greater amount than is claimed by the p'aintiff, but such
error may be cured by entering a remittitur in the appellate court. Ep-
ley et al. v. Eubanks,
9. Motion in arrest of judgment.-The question of the sufficiency
of the declaration can not be raised on a motion in arrest of judgment,
after demurrer to the declaration, and the defendant has pleaded over.
Brooks et al. v. The People,
422
10. Objection.-An objection not assigned for error will not be con-
sidered cn appeal. Allen v. Hickling.
549
11. Objection to evidence.-An objection to the admission of evidence
should be made when the evidence is offered, and in such manner that
the objection can be obviated if desired. It is error to allow objection-
able evidence to be heard and afterward exclude it by an instruction.
-W. U. Tel. Co. v. Hope,
12. Presumption from record.-Where a demurrer to several as-
signments of breaches in a bond, is not set out in the record, this court
will not presume that such demurrer was several to each breach as-
signed. The People v. Gregory et al.,
370
13. Prima facie case.-A general statement by the plaintiff as a wit-
ness that the defendant is indebted to him in a certain sum, without
any statement of facts in regard to such indebtedness, is not such a state-
ment as makes a prima facie case. McGeoch et al. v. Hooker,
14. Question for jury.—It is error to submit the question of a per-
manent injury to the jury, when there was no evidence upon that point.
P. C. & St. L. Ry. Co. v. Shannon,
222
15. Re-docketing cause.-Where a motion to re-docket a cause is
overruled on account of no proper notice being given, and afterward
proper notice to re-docket is given and the cause re-docketed, a notice
in the interim to take depositions is a nullity. Joy v. Aultman &
Taylor Mfg. Co.,
413
16. Reversal of judgment—Error in instructions.—Where it is ap-
parent from the whole record that substantial justice has been done, the
judgment will not be reversed for a technical error in an instruction.
Joy v. Aultman & Taylor Mfg. Co.,
413
17. Several counts-Proof.-Where there are several counts in the
declaration, including the common counts, it is error to instruct the jury
that the plaintiff must prove every material allegation in all the counts
of his declaration. This is tantamount to directing the jury to find for
the defendant. Davies v. Cobb,
18. Verdict sustained.-The court is of opinion that the verdict is
supported by the evidence, and the instructions, though not in all re-
spects formal, are not so erroneous as would be likely to mislead a jury.
C. & N. W. Ry. Co. v. Garfield,
19. In excess of ad damnum.-It is error to render judgment for an
amount greater than that claimed as damages in the writ. Miller v.
Glass,
20. Motion-Causes.-Where the motion for new trial does not sug-
gest as a cause therefor that the damages are excessive, that question
will not be considered on appeal. P. D. & E. Ry. Co. v. Booth, 358
NONSUIT.
21. When may be taken.-A plaintiff may take a nonsuit after the
court has announced its opinion, and before a note thereof is made in
the docket of the judge. Prindiville v. Leon,
PARTIES.
22. Assignees.—Where an action is commenced and the owner as-
signs the right of action to another, the latter may prosecute the action
for his own benefit, in the name of the former, upon such terms as to
costs, etc., as the court may think proper. Major et al. v. Collins et
al.,
23. Status of case below.-Where a cause is remanded without spe-
cial directions, and the court is merely directed to proceed in conformity
with the opinion expressed by this court, the cause stands for trial upon
the merits the same as if no appeal had been taken, except as to the
questions determined upon appeal, and parties may amend their pro-
ceedings and make new issues. Updike et al. v. Parker et al.,
REMITTITUR.
21. When not good.-Where execution has issued on an excessive
judgment and been satisfied by payment, pending an appeal, the error
of excess in judgment can not be cured by entering a remittitur. Mil-
ler v.
Glass,
560
SUIT ON BOND.
25. Assigning breaches.—In a suit upon an official bond, each
breath assigned stands in the place of a declaration, and upon a gen-
eral demurrer to the whole, if any one breach is well assigned, the de-
murrer should be overruled. The People v. Gregory et al.,
370
VERDICT.
26. Against evidence.-The verdict being against the weight of evi-
dence, the judgment is reversed. eid v. Furness et al.,
645
1. Jurisdictional facts.-The doctrine of presumptions has no ap-
plication to jurisdictional facts in cases of proceedings under a statute.
Ayer et al. v. Town of Lake,
PRINCIPAL AND SURETY.-See SURETY.
PROPOSITION AND ACCEPTANCE.-See CONTRACTS.
PUNITIVE DAMAGES.-See DAMAGES.
RAILROADS.
COMMON CARRIERS.
1. Carriers of passengers.-When a passenger enters a car by invi-
tation of an employe of the railroad company, or in obedience to an an-
nouncement that the cars are ready to receive passengers, the relation
of passenger and carrier is created. H. & St. Jo. R. R. Co. v. Mar-
tin,
386
2. Delay in transportation.—Where a carrier receives property for
transportation, it is his duty to carry it to the point of destination with-
in a reasonable time, and for a failure, through-gross negligence, to do
so, an action will lie. W. St. L. & P. Ry. Co. v McCasland,
3. Excuse for delay.-While nothing but the act of God or the pub-
lic enemy will excuse a carrier from the ultimate delivery of property
intrusted to his care, he is not to the same extent liable for every delay
in reaching the point of destination. W. St. L. & P. Ry. Co. v. Me-
Casland,
491
4. Injury to stock in transit.—A carrier is not liable for injuries to
stock in transit, resulting from what is termed "their own proper
vices." W. St. L. & P. Ry. Co. v. McCasland,
5. Liability for acts of another's servants.-Where a railroad com-
pany has its trains made up in the depot of another company, by the
servants of the latter, the former company is liable for an injury to a
passenger upon its train while under charge of the latter's servants.
H. & St. Jo. R. R. Co. v. Martin,
6. Limiting liability.-A carrier can not, by contract, relieve him-
self from responsibility for his own negligence, or that of his servants.
W. St. L. & P. Ry. Co. v. Black,
465
7. Notice of claim for damages.-A carrier may, by contract, pro-
vide that notice of a claim for damages shall be given within a specified
time, and where such a provision exists, the notice must be given.
W. St. L. & P. Ry. Co. v. Black,
8. Special contract.-In case of an unreasonable delay in transpor-
tation, an action will lie against the carrier, independent of any special
contract he may have with the shipper. W. St. L. & P. Ry. Co. v.
McCasland,
EXTORTION AND UNJUST DISCRIMINATION.
9. A penal action.-The liability imposed upon railroads for extor-
tion and unjust discrimination is statutory, and actions for recovery of
EXTORTION AND UNJUST DISCRIMINATION.
the statute penalty are penal actions, and must be begun within two
years after the cause of action accrues. St. L. A. & T. H. R. R. Co. v.
Hill et al.,
10. Proof in actions for.-In actions against railroad companies
for extortion and unjust discrimination, it must appear not only that a
discrimination was made, but that it was unjust, and this must be
alleged in the declaration. St. L. & T. H. R. R. Co. v. Hill et al.,
248
11. Traverse of allegation.-The schedule of rates required by
statute to be fixed by the railroad and warehouse commissioners, is only
prima facie evidence that such rates are reasonable, and notwithstand-
ing this, the corporation may traverse the allegation of extortion, and
show that the rates actually charged are reasonable and not extortion-
ate. St. L. A. & T. H. R. R. Co. v. Hill et al.,
248
GENERALLY.
12. Brakemen.-It is the duty of brakemen using a car, as well as
of the car inspector, to notice and report a defect in the car; but if
they are negligent in this respect, and an injury results to another em-
ploye in the same line of employment, the master is not liable. C. &
A. R. R. Co. v. Bragonier,
13. Conductor-Admissions.-An admission or statement of the
conductor of the train, made after the accident occurred, in reference to
it, is not admissible against the company. H. & St. Jo. R. R. Co. v.
Martin,
386
14. Constructing over water-courses.-Where a railroad is con-
structed over water-courses on private land, it is bound to make suit-
able bridges, culverts, or other provision for carrying off the water,
and to keep them in suitable repair. It is bound to bring to such con-
struction all the engineering skill and care ordinarily applied to works
of that kind, having in view the size and habits of the stream; such
as will be sufficient to avoid all danger in ordinary floods or freshets;
but it is not bound to guard against extraordinary floods. Ill. Cent.
R. R. Co. v. Bethel,
15. Culverts - Flood-Damage.-Where a corporation has exer-
cised ordinary care in the construction or repair of culverts over water-
courses on private land, it is not liable for damages occasioned an
adjacent proprietor by extraordinary floods choking or washing out
the stream. Ill. Cent. R. R. Co. v. Bethel,
16. Duty in respect of cars.-Railroad companies are held to a high
degree of care in providing safe and suitable cars and machinery for
the use of employes, but they are not insurers of their absolute
safety. C. & A. R. R. Co. Bragonier,
17. Flagmen-Ordinance.-An ordinance requiring flagmen to be
stationed at street crossings, acts only upon the owners or lessees of the
railroad tracks, and a failure to comply with it can not be made the
basis of a liability against a company having no control over the track,
but having only a license to run its cars upon such track under certain
regulations. L. S. & M. S. Ry. Co. v. Kaste,
536
RAILROADS.
GENERALLY. Continued.
18. Foreign cars—)
-Defect.-A railroad company is liable for an in-
jury arising from a defect in a car which it permits upon its track,
although the car may be owned by another company. C. &. A. R. R.
Co. v. Bragonier,
516
19. Killing stock.—A railroad company is liable for stock killed by
running its trains, when the killing results from want of ordinary
care and diligence. It is not necessary the killing should be wantonly
or willfully done; it is the duty of the servants of the company to avoid
the injury if it can be done. Shuman v. I. & St. L. R. R.,
472
20. Obstructing crossing.-A railroad company having only the
right to use the track of another for certain purposes, can not be made
liable for an injury caused by another company obstructing a crossing
with its own cars. L. S. & M. S. Ry. Co. v. Kaste,
21. Rate of speed.-A rate of speed that would be highly danger-
ous or even reckless in a populous city with numerous street crossings,
might not be regarded as dangerous in the sparsely settled suburbs of a
town. P. D. & E. Ry. Co. v. Miller,
375
22. Sparks from engines.—Where an engine is equipped with the
best and most approved appliances for arresting the escape of sparks,
and is prudently managed, and no negligence on the part of the rail-
road company is shown, there can be no recovery for damages caused
by sparks escaping from an engine and setting fire to an adjacent build-
ing. C. & A. R. R. Co. v. Smith,
348
NEGLIGENCE.
23. Due care by employe.-The degree of care required to be exer-
cised by a brakeman for his personal safety, is the same degree of care
with which the same work would have been done by an ordinarily pru-
dent brakeman. C. & A. R. R. Co. v. Bragonier,
RATIFICATION.-See AGENCY.
GENERALLY.
1. What is.-Ratification consists in or is evidenced by some overt
act or declaration having reference to the act ratified, and susceptible of
positive proof. Mere ill will toward a person, or a disposition to find
satisfaction in the act done, however manifested, except by some act
having direct reference to the particular trespass committed, does not
tend to prove a ratification. Arasmith v. Temple,
39
1. Prima facie evidence.-A receipt is prima facie evidence of what
it contains, and casts the burden of disproving it upon him who attacks
it. Bauchwitz v. Tyman,
1. Unpaid rent.-In an action of trespass by a tenant against the
landlord for an illegal distress, the latter may recoup to the extent of
any unpaid rent although rent may not be due. Cunnea v. Williams,
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