ailment from which she was suffering, not | contents of the original paper, so the fact the result of any cause pleaded in defendant's was before the jury. answer, they should find for plaintiffs. Defendant called the assured's surviving husband, and propounded to him many questions calling for information communicated to him by his wife. Objections to these questions were sustained. Section 332 of the Code is as follows: "Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married, nor shall they, after the marriage relation ceases, be permitted to reveal, in testimony, any such communication made while the marriage subsisted." By section 334, supra, the interested spouse may waive said privilege. We think the court committed no error in this regard. The husband's testimony was not for the benefit of his late wife's estate, nor did the witness or plaintiffs waive the statutory privilege. Stanley v. Montgomery, 102 Ind. 102, 26 N. E. 213. 4. Since defendant's counsel did not offer to prove any fact after objections to certain questions on direct examination of its witnesses were sustained, we will not review errors assigned upon such rulings. Witnesses were allowed to answer relevant questions which had been held improper at other stages of the trial, and in some instances were refused permission to testify a second time concerning subjects discussed in answers theretofore given by them, so that apparent errors argued upon an examination of the entire bill of exceptions are found not to be real. An attempt was made to prove that Mr. Gomer Thomas while county attorney of Harlan county had control of a written dying declaration made by Mrs. Metzger, but the record discloses the witness was not acquainted with the handwriting or the signature of the assured, nor was there any comDefendant complains because the court rul-petent foundation laid to establish that said ed that the husband need not testify to the document contained the statements referred fact that he gave Dr. Trostler a promissory to. note about the time of the alleged abortion. This was not a privileged communication, but the fact was established by the doctor's testimony. We think no error would have been committed in permitting the witness to testify concerning the purpose for which said note was given. Before asking the question, defendant had not connected that purpose with any criminal conduct on the part of Dr. Trostler or of the deceased, nor did its counsel suggest the missing link would be supplied, and, under the circumstances, we think the court acted within its discretion in sustaining these objections. The witness testified to the condition of his wife's health about the time she was in Dr. Trostler's care, and said that he did not know for certain and could not state, except from statements made by her, the purpose of the physician's visit, nor inform the jury what the doctor did to his wife. So, whether the court ruled wisely or otherwise concerning many questions propounded to the husband, defendant's counsel finally secured from the witness statements which, if true, indicated that he could not assist the defense without divulging privileged communications made to him by his wife, and that privilege was insisted upon. The woman's pregnancy is established by the testimony of at least one other witness, and is not contradicted. 5. It is insisted that the verdict is not sustained by the evidence. It will be borne in mind that in the state of the record it devolved upon defendant to prove that the assured came to her death as a result of a violation or attempted violation of the law, and that it pleaded the assured came to her death as a result of a violation of section 39 of the Criminal Code. It appears from the evidence that: On the 23d day of September, 1906, Mrs. Metzger consulted Dr. Trostler and was probably treated by him until about the 9th of October. The evidence is meager concerning her physical condition, but it may fairly be inferred that she was in ill health and probably pregnant. From October 9th until November 13th the woman was not, so far as the evidence indicates, under the care of or treated by a physician, but on the last-named date Dr. Conklin was employed to attend the woman and called to his assistance Dr. Gardner. An examination disclosed an inflamed condition of her generative organs, and an unsuccessful attempt was made to relieve the patient by the use of various remedies and instruments and by an operation. Dr. Bartlett was then called in consultation, and on the 18th Dr. Elam, an expert in gynecological surgery, with the assistance of Drs. Conklin and Bartlett, attempted to operate upon the woman, but she 3. Dr. Conklin succeeded Dr. Trostler as died before the preliminary incision was the assured's physician, and testified for the completed. Dr. Conklin testifies that Mrs. defendant to the effect that, before treating Metzger told him that Dr. Trostler had athis patient, he required Mr. and Mrs. Metzger tempted an abortion upon her, and there is to sign a written statement wherein they ex-evidence to corroborate his statement that onerated him from all blame because of re- by some means an abortion had been attemptsults flowing from an attempted abortion ed prior to his connection with the case. It committed by Dr. Trostler. This document is not impossible to logically infer from Dr. the witness stated was lost, but he produced Bartlett's testimony that the woman died as an alleged copy, which was excluded by the a result of Dr. Conklin's operation. The It [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 381-389; Dec. Dig. § 169.*] Appeal from District Court, Douglas County; Day, Judge. Action by the Heisler Pumping Engine Company against James E. Baum and others. Judgment for defendants, and plaintiff appeals. Affirmed. mony concerning the woman's declarations. | the trial that plaintiff had sold the engine to the and, if they did so, the verdict is not without B. B. Co., or that it had or held a claim for the some support in the evidence. It is possible evidence offered. price against such company, considering all the Held, that an instruction to that the woman's condition prior to Novem- the trial jury to return a verdict in favor of deber 13th was brought about by some un- fendants was proper. foreseen and innocent cause. On the other hand, she may have attempted upon her own responsibility to operate upon herself. may be doubted whether an abortion brought about or attempted by the woman would amount to a violation of section 39 of the Criminal Code. Hatfield v. Gano, 15 Iowa, 177; Commonwealth v. Wood, 11 Gray (Mass.) 85, 93; Bishop on Statutory Crimes, §§ 749, 760. In any event, the burden was on defendant to establish to the satisfaction of the jury the facts upon which it predicated a forfeiture of the certificate in suit, and we do not feel justified in disturbing the verdict upon this point. The instructions are criticis-fendant Baum Building & Realty Company ed, but, taken altogether, they are much more favorable to defendant than the evidence justified, and it has no just cause for complaint upon this point. 6. Defendant's showing of diligence was not sufficient to justify the court granting a new trial because of newly discovered evidence. This subject is largely within the discretion of the trial court, and ordinarily its ruling upon the point is conclusive. Grand Lodge A. O. U. W. v. Bartes, 69 Neb. 631, 96 N. W. 186, 98 N. W. 715. The judgment of the district court, therefore, is affirmed. HEISLER PUMPING ENGINE CO. v. Richard S. Horton, for appellant. Baldrige & De Bord, for appellees. REESE, C. J. It was alleged in the petition in this case that both plaintiff and de are corporations duly organized; that on the 1st day of February, 1902, plaintiff sold to the W. R. Bennett Building Company, another corporation, an engine of the value and price of $1,375; that on the 13th day of April, 1903, plaintiff procured a judgment against said building company for the sum of $1,455.20, which is unpaid and is still in force; that, for a valuable consideration moving to defendants, they assumed and agreed to pay the said claim of plaintiff against the building company, together with interest thereon, and for which demand had been made and payment refused; that, said sum of $1,455.20 is due and for which judgment is demanded. The answer is a general denial. The cause was tried to a jury, and, upon the conclusion of plaintiff's evidence, defendants moved the court for an order striking out all (Supreme Court of Nebraska. Feb. 10, 1910.) the testimony of the principal witness for (Syllabus by the Court.) 1. EVIDENCE (§ 424*)-PAROL EVIDENCE-VARYING WRITTEN CONTRACT. "Where the controversy is between a party to a written contract and one who is neither a party nor a privy to it, the rule excluding parol evidence tending to vary, modify, or contradict the writing does not apply.” First National Bank of Wayne v. Tolerton & Stetson Co., 5 Neb. (Unof.) 43, 97 N. W. 248. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1966-1968; Dec. Dig. § 424.*] 2. APPEAL AND ERROR (§ 1047*)—EXCLUSION OF EVIDENCE-HARMLESS ERROR. plaintiff, assigning the following grounds: "The defendants now move to strike out all of the testimony of the witness Bennett in relation to the defendants or either of them having assumed or agreed to pay the debts of the Bennett Building Company, or the W. R. Bennett Building Company, for the reason that the testimony of the witness Bennett shows that the alleged statement of Mr. Baum, one of the defendants, in regard to this matter, was made at the time of the agree ment marked 'Exhibit 1,' and is shown by the evidence to be a part thereof, and for the reason that the verbal statements, or verbal understandings of the parties at the time said agreement was written or entered, cannot now be used for the purpose of altering and modifying or in any sense amending the writ ten agreement marked 'Exhibit 1,' and for the further reason that the said Exhibit 1 shows on its face, and the evidence of Mr. It was alleged in the petition that plaintiff Bennett further shows, that it is the agree sold an engine to B. B. Co. for a certain price; ment between the parties under which the that the engine had not been paid for; that, aft- Bennett Building Company stock and properer the sale, defendants, for value, assumed and agreed to pay the debt, and which they failed ty was transferred, and Exhibit 1 shows on to do. There was no evidence tendered upon its face that it is a complete agreement be Where the trial court erred in striking out the testimony of plaintiff's principal witness after plaintiff rested its case, and then instructed the jury to return a verdict in favor of defendants, the order striking out the testimony was error without prejudice if the instruction to return the verdict would have been proper had the testimony been retained. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1047.*] 3. TRIAL (§ 169*)-DIRECTING VERDICT. tween the parties in relation to said matters, | question remains as to whether the court aftand for the further reason that the testi- er plaintiff rested erred in then instructing mony of Mr. Bennett tends to modify, alter, the jury to return the verdict for defendants. or amend said written agreement marked If the instruction was not erroneous, had 'Exhibit 1'; and therefore said testimony is the evidence not been stricken out, it is clear incompetent, and I move to strike the same that the order first made could not be held from the record in so far as it relates to the to have been prejudicial to plaintiff. The varying or modifying of said contract." This averments of the petition are that plaintiff motion was sustained. Defendants then mov-sold the engine referred to to the W. R. Bened for an instruction to the jury to return a nett Building Company, that defendants for verdict in their favor. The motion for the a valuable consideration agreed and prominstruction, which was sustained, was as fol- ised to pay the debt thereby created, and that lows: "I now move the court to instruct the they had failed to do so. The answer being jury to render a verdict for the defendants in a general denial, it devolved upon plaintiff this case, for the reason that the evidence to prove the sale, as in a suit by a vendor does not tend in any way to sustain the al- against a vendee, that the purchase price legations of plaintiff's petition, and for the had not been paid, and that defendants asfurther reason that the evidence does not sumed and agreed, for a valuable consideratend to show that the defendants, or any of tion, to pay the debt. The evidence, we think, them, assumed or agreed to pay the debt of tends to show the agreement on the part of the plaintiff referred to in the petition." the defendants to pay for the engine, but it Plaintiff also moved the court for an instruc- is nowhere shown that plaintiff ever sold the tion for a verdict in its favor, but which the property to the W. R. Bennett Building Comcourt overruled. In accordance with the in-pany, or that that company was indebted to struction, the jury returned a verdict in favor of defendants. Plaintiff excepted to the action of the court on these motions. A motion for a new trial was filed, which was overruled, and judgment was rendered on the verdict. Plaintiff appeals. plaintiff therefor. Had the court overruled defendants' motion to strike out the evidence, still the instruction to return the verdict in defendants' favor would have been proper upon the conclusion of plaintiff's evidence. Such being the condition of the evidence, the judgment will have to be affirmed, which The judgment referred to in the petition As above appears, the motion to strike out was introduced in evidence, but the pleadthe testimony of plaintiff's principal witnessings upon which it was based were not, and was based upon the ground that there was a it is nowhere shown upon what cause of acwritten contract between the W. R. Bennett tion it was founded, and it cannot be conBuilding Company and defendants by which sidered as supplying the defect. the whole of the transaction was set out, except the fact of the assumption by defendants of certain debts owing by said company. It was held by the trial court that the written contract between the parties to it was binding and conclusive, and that no testimony could properly be submitted to the jury REED v. CHICAGO, B. & Q. R. CO. (No. which would tend to vary or contradict its is done. 15,906.) Feb. 10, 1910.) terms. In this the court overlooked the fact (Supreme Court of Nebraska. (Syllabus by the Court.) 1. WATERS AND WATER COURSES (§ 176*)— RAILROAD EMBANKMENT - DEFECTIVE CONSTRUCTION-FLOODING LAND. Where damages were paid to a riparian owner for the diversion of a stream from his land, such damages do not cover future injuries by reason of the defective construction of a railroad embankment in such a manner as to retain flood waters, which otherwise would have escaped through a natural channel. Water Courses, Dec. Dig. § 176.*] [Ed. Note.-For other cases, see Waters and 2. LIMITATION OF ACTIONS (§ 55*)-FLOODING LANDS-ACCRUAL OF CAUSE OF ACTION. Where an injury to crops is caused by the negligent construction of a railroad embankflood waters of a natural stream, the cause of ment, which arrested and held upon the land the action accrues at the date of the injury, and not at the date of the negligent construction of Mitchell, 74 Neb. 563, 104 N. W. 1144. the improvement. Chicago, B. & Q. R. Co. v. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 305; Dec. Dig. § 55.*] 3. WATERS AND WATER COURSES (§ 179*)RAILROAD EMBANKMENT-FLOODING LANDS. Evidence examined, and held to sustain the verdict. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 250; Dec. Dig. § 179.*] Appeal from District Court, Harlan County; Dungan, Judge. of the creek, and flowed down what is known as the "first bottom" following the windings of the stream, being impeded by the railroad embankment, and the new channel not being of capacity to carry them off rapidly, accumulated until they rose to a height sufficient to flow over the railroad, which was washed out, and the waters rushed into the old chanThe flood waters were again dammed by the embankment to the east of plaintiff's land where the two drain pipes were placed. The water again accumulated until it rose broke through at or near the old channel. to the top of the embankment, when it again The plaintiff's land was flooded to a height of from 6 to 10 feet, ruining his crops. de the furniture in his house, and drowning his stroying his hay and corn in crib, injuring domestic animals, damages for which he seeks to recover in this action. Action by James S. Reed against the Chi-nel. cago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed. James E. Kelby and Frank E. Bishop, for appellant. Gomer Thomas and John Everson, for appellee. The petition alleges that the defendant negligently and carelessly failed to build or maintain a bridge or other means for the water to escape at the place to the east of plaintiff's farm, where the railroad crossed the channel, but negligently built an embankment there, and that during wet periods of the year a large amount of water flowed into the old channel, but could not escape there from, and would overflow and stand upon plaintiff's land, and that the defendant negligently failed to maintain a sufficient dam or embankment at the point where it sought to divert the stream from the natural channel to the artificial channel, and that by reason of this negligence the water on the 1st of July, 1905, flowed over the artificial embankment into the old channel, and, on account of no proper means of escape being provided, they caused the damage complained of. The defendant alleged that the railroad was built in 1887 as now constructed; that the then owner was paid all damages by reason of such construction; that the present condition existed at the time plaintiff secured any rights in the land, as he well knew; that whatever damages resulted from the construction of the railroad and the change in the channel of the creek occurred in 1887; and that the cause of action, if any, accrued at that time. It is also alleged that the flood was of such unusual and unprecedented and excessive character as never had been known LETTON, J. The plaintiff is a resident of Harlan county, owning land which lies in the valley of Sappa creek, which is a small stream running easterly and emptying into the Republican river. The railroad track of the defendant company runs about 20 rods south of the south line of plaintiff's land, crossing the creek about a quarter of a mile west of the west line of plaintiff's land, and also a few rods east of the plaintiff's east line. From the point where the railroad crossed it to the west of the plaintiff's land the creek originally flowed in a northeasterly direction into and through his premises, thence curved again to the southeast to a point south and east of his land, where it was again intersected by the railroad. A solid embankment was constructed across the stream at both points of crossing, except that at the east crossing two iron drainage pipes, each 24 inches in diameter, were placed in the embankment to drain the old bed of the stream north of the railroad and dispose of the natural drainage of the lands lying north and west, which was discharged into the old bed by several long ravines. The railroad company dug a new channel for the stream from the point where the embankment dammed it on the west to where it crossed the channel again on the east, so that the stream when it struck the embankment was diverted at right angles across the chord of the arc formed by its old channel and the railroad, and ran in the ditch dug along the south side of the railroad. In 1886-87, at the time the railroad was built, the change in the stream was made with the consent of John Reed, a brother of the plain-in that vicinity before; that the valley lands, tiff, who then owned the land, and he was regardless of the nearness of the railroads, paid $150 damages for this diversion of the were flooded to a great height for many stream from its natural course. In 1903 the days; that the railroad was overflowed and plaintiff, with knowledge of these facts, pur- washed away in many places by the flood chased the land. On July 1, 1905, there was which was of such character as to constian excessive fall of rain in this vicinity, be- tute "an act of God," which the railroad comtween five and six inches falling during the pany could not have anticipated and prelatter part of the night and early in the vented. Plaintiff recovered judgment, from morning of July 1, 1905. The flood waters, which defendant appeals. We will consider which before the construction of the rail- the errors assigned in the order of their road had formerly overflowed the channel presentation in defendant's brief: 1. It is contended that the evidence establishes the defense that the flood was so unprecedented and unusual that the defendant could not reasonably be required to anticipate its occurrence, and was of such a character as to come within the class of happenings technically known as the "act of God." A number of witnesses testified it was the highest flood they had ever seen in the valley, either before or since; that hay, dead animals, and other articles were carried away by it. Some of defendant's own witnesses, however, say that the waters in 1887 rose to within a few inches of the top of the grade, and one witness for the defendant testifies on cross-examination: "Q. Now, as to the height of the water, it has been up to about the ties before? A. Within a few inch-ligence on the part of the defendant, * * es of the ties; yes, sir. Q. A number of times? A. Well, about three times that I know of before that; it has been up pretty high there." Another witness testifies that they "had a few floods after that was just as bad." Taking all the testimony with respect to the volume of this flood, we think the jury were warranted in finding that the washing out of the railroad embankment by the flood waters flowing down the course of the old channel, and the consequent flooding of the plaintiff's land by the retention of such waters where the lower channel was dammed, might reasonably have been expected from what had occurred previously in that locality. We think the evidence sustains the finding of the jury upon this point. 2. It is next argued that the construction was agreed to by the landowner, and damages paid. The testimony clearly shows that the damages were paid to John Reed for the right to change the stream, and divert the flow from his land. This transaction, so far as the evidence shows, had nothing whatever to do with the manner of construction of the railroad, except in so far as it diverted the stream, which, as riparian owner, Reed was entitled to have flow as it had always flowed. of a railroad embankment, which arrested and held upon said lands the flood waters of a natural stream, such party's cause of action accrues at the date of the injury, and not at the date of the negligent construction of the improvement." There is also evidence in the record to show that claims for damages had been made, and that in 1902 or 1903 defendant paid the plaintiff's grantor $50 as damages for crops destroyed by water. The defendant complains of instruction No. 8 which, in effect, tells the jury that the defense of an "act of God" is an affirmative defense, and the burden of proof is upon the defense to establish it, and criticises severely the statement that, if you "find that such injury was not occasioned by an act of neg It is next contended that the right to overflow the lowlands on the north side of the railroad track had been obtained by prescription. It is said that the water had accumulated in the old channel from the drainage of surrounding lands and damaged the crops growing on the low land, and that, since this condition had existed ever since the building of the railroad, a prescriptive right of flowage had been obtained. The damages claimed are for injuries to the crops, furniture, live stock, etc., and not for injuries to the land itself. We have held, in Chicago, B. & Q. R. Co. v. Emmert, 53 Neb. 237, 73 N. W. 540, 68 Am. St. Rep. 602, and Chicago, B. & Q. R. Co. v. Mitchell, 74 Neb. 563, 104 N. W. 1144, also Chicago, R. I. & P. R. Co. v. Andreeson, 62 Neb. 456, 87 N. W. 167, that such damages do not fall within the rule contended for. "Where an injury to the crops and lands of then your verdict should be for the defendant." The objection to the form of this instruction, as well as to No. 9, and of others treating on this subject, we think it is unnecessary to consider, because the evidence warrants the conclusion that the jury found that the flood was not of such an unprecedented character as to constitute an "act of God," and that defendant by the exercise of reasonable care might have prevented the backing up of the water upon plaintiff's land, at least to a greater height than other lands where the flow was unobstructed. We think it clear from the evidence that, even if the railroad embankment had not been constructed, the volume of the freshet would have covered much of the lower portion of plaintiff's land. The evidence shows that the stream was out of its banks, and covered the "first bottom" of the creek for several miles above. But it also shows that the "first bottom" above the railroad embankment was from a quarter to more than a half mile wide; that the point where the new channel was cut was close to the high bank of the "second bottom" on the south side, and that the space between the railroad embankment and this bank was only from about 100 to 200 feet wide, so that the volume of flood waters which had spread over the entire "first bottom" were concentrated at this point, and that as soon as the railroad embankment was washed out so as to furnish an outlet, the waters above rapidly fell. While the water would probably have covered most of the "first bottom" on plaintiff's land if no railroad grade had been erected, we are satisfied that they would not have reached the height to which they rose by several feet if it had not been there, or if free passageway had been afforded. We think it clear that all the damage that plaintiff suffered did not result from the construction of the embankment, and that in common with others he would have suffered by the flood in any event. The defendant, however, made no issue upon this point, either by the pleadings or the evidence; and, having relied solely upon the defenses before mentioned, we |