to the number of fifty, and his hogs to the number of three, thereon, were, by reason of the flooding of his barn and corrals, forced out into the open country, in cold, snow, ice, and water, without regular care and feed, and compelled to be so exposed for 24 days, and greatly reduced in flesh and condition, and five of his said cattle, and said 3 hogs, were drowned and killed, to plaintiff's damage in these behalfs, $400. His labor and expense in endeavoring to save and care for his animals and property and his family from the consequence of said overflow amounted to not less than $200 in value, to his damage in this behalf $200; and the plaintiff, in consequence of said overflow, was otherwise put to great expense, trouble, and inconvenience and hardship; and that the plaintiff's entire damage and loss in the premises is $4,480." He afterwards filed a motion to amend his petition "by crossing out the words and figures, to-wit, to plaintiff's damage in these behalfs, $2,500,' found in lines 8 and 9, on page 7, of the petition; and by crossing out the words and figures, towit, to plaintiff's damage in this behalf, $500,' found on lines 11 and 12 of the same page; and by crossing out the figures, towit, '$150,' found in line 19 of the same page; and by inserting, by interlineation, in place of said last-mentioned figures, the figures, to-wit, $3,530,' in order to make one item of the same aggregated damages out of what is now stated in three items, because said three items, as now stated, comprise damages only to the entire tract of real property, and, as now stated, might lead to confusion in the evidence and verdict." This was objected to on behalf of the railroad company, because it states a new and different cause of action, and is a departure from the original cause. The objection was overruled, to which exceptions were duly taken. The amendment was not a departure, and did not state a new cause of action, and the right to permit the amendment to be made was within the control of the court. In case of surprise, where an important amendment of a pleading is made on the trial, the court has the power to continue the cause for a time or to the next term of the court. This power is nec- | essary, and should be exercised, where an important amendment is made during the trial, which requires new testimony to support or defend against, which the adverse party cannot then produce. In the case at bar, however, there is no claim of unfair treatment by the court, and the amendment seems to have been without prejudice. The railway company, in its answer, admits the construction of the bridge in question, but denies that "it wrongfully, unlawfully, and in violation of rights of the plaintiff, constructed said bridge, and alleges that it was duly authorized by its charter, under the laws of the state, to construct the same." Defendant denies that the said bridge was so constructed as to cause an unlawful obstruction in said Platte river, and to prevent the natural flow of ice and water to gorge and back up and overflow the banks of said river. And defendant denies that said bridge was in any particular defectively or insufficiently constructed, but, on the contrary, avers that the same was a suitable, safe, proper, and lawful structure, to be erected and extended over said river in furtherance of defendant's power and authority to build and operate a railway, under its said charter, over and across said river. And defendant denies that said bridge in any manner caused the said ice and water to back up and overflow the land of plaintiff; and denies that plaintiff was damaged in any way by reason of the construction or erection of said bridge and approaches; and denies that said bridge or its approaches were negligently, wrongfully, or improperly constructed; and defendant denies that said plaintiff was damaged as in said petition described, but alleged that, if said plaintiff suffered damage as alleged from the overflow of said Platte river, or from the gorging of ice there, such overflow and gorging were the result wholly of natural causes, and of the unprecedented high water, and the heavy snow upon the head-waters of said stream, and the rapidity with which the same melted, and the sudden breaking up of the immense quantity of ice in said river caused the gorge and overflow as aforesaid, and that such alleged damages resulted wholly from the elements or act of God, being causes over which the defendant had no control whatever, and were not in any way, or in any particular, caused by said defendant, or any of its structures or erections connected with said railroad, or by the construction, management, or existence of said railroad bridge or approaches. And for further answer defendant says that a short distance above the said bridge, across the said Platte river, there are certain islands and sand-bars; that, at the time alleged in said petition, the only gorge of ice in said river formed on said islands and sand-bars, and not at or near the said bridge; that the gorges of ice thus formed upon the sand-bars and islands above said bridge caused the overflow complained of, and the only overflow of said river at said time; that the overflow of said river thus caused by the gorges at the said islands and sand-bars was the direct cause of the alleged damages of said plaintiff, and all the damages that may have accrued to the said plaintiff or others in the vicinity of said gorge. And defendant says that there was no ice-gorge formed at the bridge, but that a large amount of the water that overflowed the banks of said river above said gorge formed on the islands and sandbars as aforesaid, flowed around said gorges on the bottom lands, and back into the channel of said river above said bridge, and pursued its natural course under said bridge, without hindrance or obstruction." As a second defense, the statute of limitations is pleaded; and the third defense is that the cause of action accrued in Douglas county, and the action is brought in Saunders county. The pleadings in the case of Annie E. Brown v. Omaha & R. V. R. Co. are substantially the same as in the case above set forth, except as to the title of 40 acres of land, which will be noticed hereafter. official bonds, acts done by an officer by virtue of his office, neglect of official duty, and fines, forfeitures, and penalties imposed by statute. Section 55 applies more particularly to ordinary corporations of the state having a principal place of business therein, and, it is evident from other provisions of the statute, was not intended to apply to a railway corporation, as section 56 authorizes an action to be brought against it for an injury to person or propliability as a carrier in any county through or into which the road or line passes. It is claimed by the plaintiff in error that this provision does not apply in an action for injury to property caused by the construction of a bridge in so negligent and unskillful a manner as to cause an overflow of water, which causes the damages. Section 4, art. 1, c. 72, Comp. St., provides that: "Service upon railroad companies may be made as upon other corporations, or by leaving a copy of the summons by the proper officer with any station agent, ticket agent, conductor, or other officer of said railroad, found within the limits of this state, or left at their usual place of business within said county." This is not an action in rem, nor for the recovery of real estate, nor in any manner affecting the title or possession thereof, and, unless prohibited by statute, there seems to be no valid reason why it should not be brought in any county were service could be had. At common law, originally, all actions were local. Bulwer's Case, 7 Coke, la. "This created no inconveniency, for all men, being anciently in decenna they were easily come at, the decenna being responsible for their appearance; but, when the customs of the decemmary begun to wear off, men used to fly from.their creditors; and this begot the distinction between local and transitory actions, the first relating to lands, which must be tried where the land lies; the other, a debt or duty adhering to the person wherever he fled. 1 Bac. Abr. 56." Genin v. Grier, 10 Ohio, 211. Hence, under the common law, it was necessary to allege a place in reference to every traversable fact, and that place, wherever the fact occurred, was always charged as being within the county where the cause was to be tried. Bliss, Code Pl. § 284. Under the Code, however, it is unnecessary, except in local actions, to state the venue. The Ohio and Nebraska Codes classify local actions: For the recovery of real property, or an estate or interest therein; for the partition of real property; for the sale of real property un At the commencement of the trial, the attorney for the railway company objected to the jurisdiction of the court, upon the ground that the action should have been brought in Douglas county, where the cause of action arose. The objections were overruled, to which exceptions were duly taken, and the ruling of the court is now assigned for error. Section 51 of the Code of Civil Procedure provides that "actions for the following causes must be brought in the county in which the sub-erty upon the road or its line, or upon a ject of the action is situated, except as provided in section fifty-two: First, for the recovery of real property, or of an estate or interest therein; second, for the partition of real property; third, for the sale of real property under a mortgage, lien, or other incumbrance or charge. Section 52: "If the real property, the subject of the action, be an entire tract, and situated in two or more counties, or if it consists of separate tracts, situated in two or more counties, the action may be brought in any county in which any tract or part thereof is situated, unless it be an action to recover the possession thereof; and if the property be an entire tract, situated in two or more counties, an action to recover the possession thereof may be brought in either of such counties; but if it consists of separate tracts, in different counties, the possession of such tracts must be recovered by separate actions, brought in the counties where they are situated. Section 53:"An action to compel the specific performance of a contract of sale of real estate may be brought in the county where the defendants, or any of them, reside." Section 54: "Actions for the following causes must be brought in the county where the cause, or some part thereof, arose: First, an action for the recovery of a fine, forfeiture, or penalty, imposed by a statute, except that, when it is imposed for an offense committed on a river or other stream of water, or road which is the boundary of two or more counties, the action may be brought in any county bordering on such river, water-course, or road, and opposite to the place where the offense was committed; second, an action against a public officer for an act done by him in virtue or under color of his office, or for a neglect of his official duty; third, an action on the official bond or undertaking of a public officer." Section 55: "An action other than one of those mentioned in the first three sections of this title, against a corporation created by the laws of this state, may be brought in the county in which it is situated, or has its principal office order a mortgage lien or other incumbrance place of business, but, if such corporation be an insurance company, the action may be brought in the county where the cause of action, or some part thereof, arose. tion 56: “An action against a railroad company, or an owner of a line of mail stages or other coaches, for an injury to person or property upon the road or line, or upon a liability as a carrier, may be brought in any county through or into which the said road or line passes. Sec It will be observed that sections 51, 52, and 53 relate to actions affecting the title to real estate, while section 54 relates to or charge. The Code of Kansas adds to the above: "Or for the determination in any form of any such rights or interest." The Arkansas and Kentucky Codes add to the classes enumerated in the Ohio and Nebraska Codes: "For an injury to real property." The original New York Code provided for local trials in actions for the recovery of a penalty or forfeiture imposed by statute,except when committed on a lake, river, or other stream of water situated in two or more counties, in which case it may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offense was committed; | against a public officer or person specially appointed to execute his duties for an act done by him by virtue of his office or against a person who, by his command or in his aid, shall do anything touching the duties of such officer. This statute seems to have been copied in California, Florida, Indiana, Minnesota, Oregon, North Caroolina, South Carolina, and Wisconsin. Bliss, Code Pl. § 286, and cases cited. It will be observed that in but two of the states named it is necessary to bring an action for an injury to real estate in the county where the cause of action arose, and in both of those states there is a provision that, "if the offense for which the claim is made be committed on a watercourse, or road, which is the boundary of two counties, the action may be brought in either of them." Id. § 286, note, 10. So that, even in the latter states, where the cause of action arose out of an obstruction in a river dividing two counties, the action could be brought in either. The action is for an alleged wrong committed by the railway company by reason of which the plaintiff below claims to have sustained damages, and such action, in the absence of a statute to the contrary, may be brought in any county where service may be had on the defendant. The defense of the statute of limitations has already been decided in Railroad Co. v. Standen, 22 Neb. 343, 35 N. W. Rep. 183, in which it was held that where a railway bridge is so negligently constructed across a river as to form an unlawful obstruction, and become a nuisance by causing an overflow of the river, no right of action accrues to a land-owner until he sustains an actual injury caused by such unlawful obstruction. That case was carefully considered, and the authorities for and against the proposition were diligently examined, and, in our view, the judgment is right, and will be adhered to. The attorney for the railway company contends that the verdict is against the instructions of the court in regard to the construction of the bridge. They are as follows: "(11) The jury are instructed that the gist of these actions is the charge of negligence and the want of proper care on the part of the defendant in the construction of its bridge across the Platte river; and, although the jury may, from the evidence, believe that each of the plaintiffs have suffered damage on account of the overflow of the ice and water from the channel of said river, this is not, of itself, sufficient to entitle the plaintiff to recover. It must further appear from the evidence that such overflow was directly and naturally caused by the negligent and improper construction of the defendant's said bridge, as defined and explained in these nstructions. (12) The jury are instructed that the defendant was authorized by law to erect the bridge in question over the Platte river, and to maintain the same in the operation of its line of railway, but it was the duty of the defendant to so construct said bridge as to permit the passage in the channel of said river of such quantities of ice and water as might reasonably be expected or anticipated at the breaking up of said river, in ordinary years. It was also the duty of the defendant, in the construction of said bridge, to take into consideration, not only the rise and fall of the river during the year, but such floods and freshets as occur annually or at longer periods or intervals, and which, from having been known to occur at such periods or intervals, might reasonably be expected to occur again. (13) The jury are instructed that the defendant in these cases would not be liable for damages occasioned by the overflow of lands caused by an extraordinary flood or freshet, such as the defendant's company could not reasonably have anticipated and provided for in the construction of its said bridge, even though such damage may, to some extent, have been occasioned by such bridge being in and over said river. (14) The jury are instructed that it was the duty of the defendant, in planning and constructing said bridge, to use and employ the engineering knowledge and skill, at the time of the construetion of said bridge, then ordinarily prac ticed in the construction of such work, and to see to the practical application of such knowledge and skill to the work of constructing said bridge; among other things, so as to allow the passage of ice and water, such as is known to pass in said river annually, or which may be reasonably expected to occur occasionally, without regard to such great or sudden overflows as are often designated as the acts of God.' (15) The jury are instructed that if they, from the evidence, believe that the defendant did construct said bridge as stated and defined in the preceding instruction, then the defendant would not be guilty of negligence, and would not be liable in these actions for the damages claimed. On the other hand, if the jury, from the evidence, believe that the defendant failed to execute and employ such reasonable and proper skill and care as stated and defined in said last preceding instruction, in the construction of said bridge, and that the overflow of the plaintiffs' lands was the direct and natural result of such failure, and that the plaintiffs suffered damage in consequence thereof, then the defendant would be guilty of negligence, and would be liable in these actions. (16) The jury are instructed that if they, from the evidence, find for the defendant on the question of negligence, that is, if they should from the evidence find that, in the construction of its said bridge, the defendant exercised reasonable skill, care, and prudence, within the definition already given,-then it would be their duty to return a verdict for the defendant. On the other hand, should the jury find, from the evidence, that the defendant did not exercise the reasonable and proper skill, care, and prudence in constructing said bridge, as hereinbefore defined in these instructions, the jury should next proceed to determine from the evidence whether an ice-gorge formed at and against the said bridge, as the direct and natural results of its negligent, unskillful, or improper construction of said bridge; and should they from the evidence find that said gorge did form at and against said bridge, as the natural and direct result of defendant's negligence or want of skill in the construction of said bridge, and that plaintiffs have been damaged in consequence thereof, they should then find in favor of the plaintiffs. But should they, from the evidence, find that such gorge, if any, was due to any other cause or causes than the defendant's negligence or want of skill and care in the construction of said bridge, they should find for the defendant; and in that case it would be immaterial what amount of damage, if any, the plaintiffs have sustained." These instructions are not objected to as an incorrect statement of the law, but it is said, in effect, that the jury disregarded them by finding, as they must have done, that the bridge was negligently constructed. The railway company called a number of witnesses, who had been engaged in the planning and supervision of bridges over the Platte and other large rivers. The testimony of these witnesses is given in a plain, direct, and intelligible manner, apparently without reserve, and certainly is entitled to great weight. They testify, in substance, that the bridge in question, at the time it was constructed, was a prudent, safe, and proper structure. They frankly admit, however, that with their present knowledge of the river it would not be so considered, so that the railway bridge over the Platte river at Ashland has spans over the main channel of 102 feet each, and at Oreapolis the spans over the main channel have been lengthened to 50 or 60 feet each. The testimony also tends to show that, with 20-feet spans, there was, in the lower part of the river, liability to gorge when the river was breaking up in the spring. The superintendent of one of the leading railroads in the state, who has superintended the construction of a number of railroad bridges over the Platte river, on cross-examination testifies: “Answer. If a truss bridge is put up, it necessarily must be raised enough higher to give the clearance under the truss that you have under the stringers. Question. That does not affect the question of the free flowage of the water and the ice, but simply a matter that affects the cost of the bridge, is it not? A. It wouldn't make any difference in the cost of a bridge whether you raised it up or let it down, but it would probably go out if you let it down enough lower to keep your track at the same elevation as on a stringer bridge. Now, then, assuming that your stringer bridge is just high enough to clear the flow of water and ice, then, with track of the same elevation on the truss bridge that you had on a stringer bridge, your truss would probably be taken out by the ice. Q. What is the objection to raising your track three or four feet higher, and putting a truss bridge under, the only objection is the expense of structure? A. The cost of the structure, and matter of operation and safety; where a stringer bridge can be used, it is very much safer than a truss bridge. Is it not practicable to build a safe bridge -a truss bridge-with 150-foot spans? A. Yes, sir. Q. Now, what is the length of the spans of the bridge which your company | Q. Q. has built under your supervision at Ashland? A. The greater number of the spans are 20 feet; we have a few trusses in the main part of the channel. Q. What length are they? A. 102 feet, clear. Q. What is the object of having those few spans that much longer in the center of the river? A. That bridge is one that will be very im portant to us, and, if we should have trouble in the spring of the year, a few days' delay to trains, which is possible to occur if we have only these 20-feet spans, and are required to take care of them with a large force, it would be quite an objection. Q. Is not this it: that those spans are put in a hundred feet and over in length because they will admit the flow of water and ice much easier than the 20foot spans? A. Yes, sir; without care being bestowed upon them. Q. To admit the flow of the ice and water through the 20-foot spans, it requires a good deal of care and a good deal of labor at times, does it not? A. Yes, sir. Q. You have observed ice as it came down the Platte river, have you not? A. Yes, sir. Q. How thick does the ice come down there occasionally? A. It varies considerably. I have seen it in some cases 18 inches, but a very small amount of it is that thick. Q. How large have you seen the cakes in dimensions? A. When they first move out, they are quite large. Give an estimate of the size. A. That depends from how far up the river they come. The first ice that moves out is generally in quite large cakes, and, when it comes down the river, it is broken up so that it can go through the bridge. Q. The more it has been traveling, and the longer distance it has been traveling, it diminishes in size? A. Yes, sir. Q. How large cakes have you seen float down the river in places you have observed it? A. I don't know; I can't say exactly. I have seen cakes float down that would not float through a bridge, but they were broken up as soon as they struck the ice breakers. In 1881 I was not on the bridge; in fact, nobody was there. It didn't stop at the bridge; it went right on through the bridge. Q. Is it not true from your knowledge as an engineer that a bridge, a pile bridge, in the Platte river, with 20-foot spans, has a tendency to stop the free flow of water and ice? A. Yes, sir; if it is not cared for. Q. But it has a greater tendency than one with 40-foot spans? A. Yes, sir. Q. In other words, the shorter the spans, until you get out to certain lengths, the greater liability there is for an obstruction? A. Yes, sir; unless it looked after. Q. If it is looked after with men sufficient there to keep the ice going through, and not allow it to accumulate, then it is all right, and there is no obstruction? A. There may be temporarily a stoppage of ice, but we have always managed to get it through. Q. You always put a force of men there every spring of the year, for the purpose of assisting the ice to flow through? A. Yes, sir; we have at Oreapolis and Columbus. Q. You do that because you regard the bridge as an obstruction, that without them it would be very liable to form a gorge? A. Yes, sir; and then for the safety of the bridge, is A. because, if it was allowed to gorge, it would probably go out and travel be interrupted. Q. In those matters you do that in considering the safety of your bridge, and impeding the travel of the road? Yes, sir. Q. That is the particular object at those points? A. Yes, sir. Q. Now, you say that safety and expense among other matters are taken into consideration in the construction of a bridge? A. Yes, sir. Q. Now, if a 100-foot truss bridge is practicable with regard to safety, then Is it not the reason why those pile bridges with 20-foot spans are constructed because they cost less money, and can be built with less expense? A. Not entirely; it costs less to maintain them, and I consider them a very much safer structure, ordinarily, over the Platte river, than a truss would be; that is, except two or three days in the spring, when the ice is going out, they would not be relied upon as much as the truss bridge; but the labor that would be put on them at that time is saved the rest of the year on a pile bridge, because the trusses throughout the year need very much more care and more skill to look after them than a pile bridge. Q. It resolves itself down to the question of expense and running of the road? A. No, sir; I think there is a certain element of danger in a truss bridge. The top of a car may lop over so as to strike the truss, and knock it down, or a piece of timber, striking out, may catch a brakeman, or somebody climbing down the side of the car. Q. If a car should go off from the track on one of these stringer bridges, it might go off from the bridge? A. No, sir; not necessarily. Q. It might not necessarily go off from the truss bridge? A. It would necessarily injure the bridge more. It might not go off from the ties, but the top of the cars might lop over so as to hurt the truss, and let the train down. Q. You say a pile and stringer bridge would be practicable with the 40-foot spans? A. Not a pile and stringer bridge. In this he is corroborated by other witnesses called by the plaintiff in error. George Smith, the county surveyor of Douglas county, Thomas Lee, a bridgebuilder, and others, testify, in substance, that prior to the building of the bridge in controversy, and since the settlement of the state, floods had occurred on the Platte river, in some cases covering the bottom lands, and that a bridge span of 20 feet from center to center" would have a tendency to gorge, dam up, and catch the drift." These witnesses are objected to, because of their lack of experience in building railroad bridges. Their testimony as experts on any question relating to that class of bridges probably would not be entitled to great weight; but, so far as they described the condition of the river at its various stages in different seasous of the year prior to 1876, they were testifying to facts. Some of these witnesses testify that, when the river was breaking up, it was no unusual thing for cakes of ice more than 20 feet square to pass down the river; and such cakes could not, unless broken up, pass through the spans of a bridge where the spans were but 20 feet from center to center, and that thus there was a tendency, by the accumulation of such cakes, to form a gorge. This testimony is not seriously questioned. These facts were well known, or at least could have been ascertained by inquiry, before and at the time the bridge was constructed, and were sufficient to justify the jury in finding as they did in this case. The first bridge of the character of that in question seems to have been the one constructed by the Union Pacific Railway Company, in 1868, across the North Platte river near its mouth. The next one was constructed by the Burlington & Missouri River Railroad Company in Nebraska, in 1871, across the Platte river near Kearney. Both of these rivers seem to be shallow at the points where the bridges are built, and hence but little trouble has been experienced with them; but we are led to infer that the case is different where narrow spans are used at all points below the confluence of the Loup river with the Platte, the river below that point being much deeper than above. The last objection is that the verdict is against the clear weight of evidence, and this court is urged to set it aside on that ground. The Code has conferred upon both the district and supreme courts power to review the facts in a case, and, when it is apparent that the verdict is clearly wrong, set it aside, and this court would be derelict in the performance of its duty if it failed in such a case to set the verdict aside. The testimony as to the cause of the gorge is of the most conflicting character. Nineteen witnesses, called on behalf of the plaintiff below, testify that about March 2, 1886, a gorge formed at the bridge in question, and extended for a great distance up the river, and that this gorge continued till about the 18th of that month. Some of these witnesses were sufferers from the overflow of the river, and have actions like those at bar pending against the company. This, however, merely affects their credibility. But the majority seem to have no interest in the result of the suit. More than twice this number of witnesses testify, on behalf of the railway company, that at the time stated there was no gorge at the bridge or for a considerable distance above it, and that during the time stated the water flowed free and unobstructed by ice near or at the bridge. A number of them testify that the gorge formed on some low islands in the river a short distance above the bridge, and, in effect, that the above islands caused the gorge. It thus became the duty of the jury to scrutinize the testimony of each witness, and ascertain from the evidence what his means of knowledge were, together with his apparent truthfulness and impartiality. All the testimony shows that there was a gorge in the river at or near the bridge at the time stated, and thereby the river bottom was overflowed in places to a great depth, and the conflict in the testimony is confined to the single point whether the gorge formed against the bridge, or on the islands above the bridge. It is clearly proved that the gorge was the cause of the overflow. This question is not to be determined by the number of witnesses on a side, although, |