Volume 261 — Minnesota Reports

<bold>Municipal corporations — defective condition in street —</bold> <bold>negligence in laying pipes</bold>. <block_quote> 1. The fact that a water main under a city street is found bowed and broken does not give rise to an inference that there was faulty engineering in laying the pipes.</block_quote> <bold>Same — same — notice thereof — question for jury</bold>. <block_quote> 2. Whether a municipality had constructive notice of a dangerously defective condition in its streets by reason of previous breaks in the same area is a question of fact for the jury.</block_quote> <bold>Same — same — negligence of city — questions for jury</bold>. <block_quote> 3. Whether water mains were broken by the movement of heavy equipment and whether a municipality was negligent in failing to regulate such traffic or to construct the street so as to accommodate it, <italic>held</italic> issues for the jury's determination.</block_quote><page_number>Page 94</page_number> <bold>Negligence — contributory negligence of driver — right to</bold> <bold>assume road is safe</bold>. <block_quote> 4. In charging the jury on contributory negligence, it was error not to instruct them that unless and until there are surrounding circumstances which, in the exercise of ordinary care, should alert him to the existence of concealed dangers, a motorist has a right to assume a highway which appears to be open for public use is safe for travel.</block_quote>

<bold>Evidence — inconsistent statements — admissibility of</bold> <bold>explanatory testimony</bold>. <block_quote> Reversible error was committed by the trial court in not allowing the owner of an automobile involved in an accident to testify with reference to certain facts which would have explained why he had been of two minds regarding who was the driver of his automobile when the accident occurred.</block_quote>

<bold>Damages — adequacy — compromise verdict — when new trial not</bold> <bold>granted</bold>. <block_quote> 1. Where the only issue submitted to the jury was the amount of damages defendant was entitled to recover on a counterclaim, we do not apply the rule that there should be a new trial rather than a reduction in the verdict when a verdict in addition to being excessive or inadequate is against the great weight of the evidence.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 2. Where the only issue submitted to the jury is the amount of damages defendant is entitled to recover on a counterclaim, we do not apply the rule that there is no right to a new trial on all issues when it does not appear that a verdict is a compromise between the right to recover and the amount of damages.</block_quote> <bold>Same — breach of contract — counterclaim for negligence in</bold> <bold>moving building</bold>. <block_quote> 3. The evidence examined and held to support the verdict of the jury.</block_quote> <bold>Same — same — same — admissibility of opinion evidence on</bold> <bold>value</bold>. <block_quote> 4. Where damage is done to a building severed from the land in moving it, refusal to admit opinion evidence as to the value of the building prior to severance or after relocation on other land was not reversible error.</block_quote>

<bold>Criminal law — conviction — review — conclusiveness of</bold> <bold>verdict</bold>. <block_quote> 1. If the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the offense charged, the reviewing court will not disturb its verdict.</block_quote> <bold>Appeal and error — review — scope of review</bold>. <block_quote> 2. Appellate jurisdiction is limited to a review of the proceedings in the lower court as evidenced by the record. The appellate court cannot consider matters which were not properly raised and acted upon below and which were not properly saved for review and made a part of the record.</block_quote> <bold>Same — same — prejudicial statements by witnesses — effect</bold>. <block_quote> 3. Unresponsive answers of police officers volunteering information<page_number>Page 516</page_number> with respect to prior unlawful conduct of the defendant when viewed in context of the entire record were not so prejudicial as to require a new trial where the trial court carefully admonished the jury to disregard such answers and in his instructions cautioned the jury not to consider them in their deliberations.</block_quote> <bold>Witnesses — credibility — conviction of crime</bold>. <block_quote> 4. Under authority of Minn. St. <cross_reference>610.49</cross_reference> the credibility of a witness may be attacked by inquiring if he has been convicted of a crime.</block_quote>

<bold>Principal and agent — notice to agent — when binding on</bold> <bold>principal</bold>. <block_quote> 1. Notification given to an agent apparently authorized to receive it binds his principal. <italic>Held</italic>, that when defendant told the salesmen for plaintiffs that he had sold his liquor establishment, plaintiffs could not claim that they thought they were making later contracts for the sale of liquor with defendant rather than with the buyer of defendant's establishment.</block_quote> <bold>Intoxicating liquor — purchases under buyer's card —</bold> <bold>liability of license holder to sellers — purpose of statute</bold>. <block_quote> 2. Minn. St. <cross_reference>340.11</cross_reference>, which forbids the sale of intoxicating liquor without a license, does not exhibit a purpose to shift liability for liquor purchases from the contract debtor to the person under whose license the purchases were made.</block_quote> <bold>Sales — action for price — letter denying defendant's</bold> <bold>liability in future — effect as admission</bold>. <block_quote> 3. Defendant's letter denying liability "from this date forward" cannot serve as the foundation for liability for sales made prior to the letter.</block_quote><page_number>Page 550</page_number> <bold>Appeal and error — assignment of error — failure to comply</bold> <bold>with rule — when waived</bold>. <block_quote> 4. This court, in its discretion, may waive a technical failure in stating assignments of error when there is but one alleged error which was clearly stated in a motion in the trial court.</block_quote>