#### JOSEPH KELLER, Respondent, v. CITY OF FARGO, a Municipal Corporation, Appellant.

(200 N. W. 780.)

Indemnity — instructions — admission oí evidence — contractor’s' negligence as proximate cause oí personal injuries raised lby municipality : toy counterclaim in action against it on; improvement, .cwitraqt; held for jury. .

Upon a second appeal in an action wherein is involved the liability of a cori*674tractor for his negligence in doing certain work in laying sewers and constructing water connections whereby the city was compelled to pay' damages to a pedestrian injured through the presence of mud upon one of its sidewalks, it is held, for reasons stated in the opinion,—

1. That the question whether the mud upon the sidewalk was proximately caused, through the negligence of the contractor, by piles of dirt negligently created and erected near, or adjacent to, the sidewalk, or from foreign causes, was properly for the jury.

2. That the trial court did not err in its instructions and rulings concerning the admission of certain exhibits.

3. That the question of the admission of certain evidence was eliminated by the instructions of the trial court.

Appeal and Error, 4 C. J. § 2836 p. 859 n. 7; § 2890 p. 918 n. 42; § 3075 p. 1093 n. 77. Evidence, 22 O. J. § 1125 p. 922 n. 97. Indemnity, 31 C. J. § 72 p. 469 n. 46, p. 470 n. 59; § 73 p. 471 n. 67.

Opinion filed November 1, 1924.

In District Court, Cass County, *Cooley,*T.

Action by a contractor to recover from a city a balance due.

Counterclaim by tbe city for negligence in tbe performance of tbe contractor’s work.

From a judgment in tbe contractor’s favor tbe city bas appealed.

Affirmed.

W. *TI. Shure (B. F. Spalding*of counsel), for appellant.

*Pierce, Tenneson, Cupler & Stambaugh,,*for respondent.

Tbe discretion vested in tbe trial court to grant or refuse a new trial is neither an arbitrary nor a general discretion. It is based on tbe theory that' the judge who tries a case, having the parties, their witnesses and counsel before him, with opportunity to observe their demeanor and conduct during the trial, and to note all incidents occurring during its progress likely to affect the result thereof, is better qualified to judge whether a fair trial bas been bad, and substantial justice done, than the appellate tribunal. Spelling, New Tr. & App. § 231.

*675If the facts are such that different, impartial minds might fairly draw different conclusions from them, they should be submitted to the jury, and are only for the court when such that fair-minded men might draw only one conclusion from them. (Citing authorities). Carr & Erickson v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N. D. 223.

In this state of the evidence, counsel for the appellant insists that it was error to take the case from the jury. In disposing of this assignment of error, it is well settled that conflicts in the evidence, upon material points must be disregarded, and the whole evidence is to be construed most favorably to the party against whom the ruling is made. The defendant’s motion to dismiss was, in effect, a demurrer to the plaintiff’s evidence, and upon such demurrer the supreme court of the United States declares the rule as follows: 'On a demurrer to evidence the court is substituted in place of the jury as judges of the facts, and everything which the jury might reasonably infer from the evidence is to be considered as admitted.’ Bank v. Smith, 11 Wheat. 171. This court has had frequent occasion to apply this well-settled rule, of practice, and has often emphasized the importance of exercising; groat caution in taking a case from the jury. See McRea v. Bank, 6 N. I). 353, 70 N. W. 813; Vickery v. Burton, 6 N. D. 253, 69 N. W. 193. The test if whether there is any competent evidence in the case reasonably tending to sustain the cause of action alleged; and, if the. evidence is such that intelligent men may fairly differ in their conclusions thereon upon any of the essential facts of the case, it is error to withdraw the evidence from the consideration of the jury. Cameron v. Gr. N. Ry. Co. 8 N. D. 130; Carr v. M. S. Ste. M. R. Co. 16 N. T). 217, 112 N. W. 972; Hall v. N. P. R. Co. 16 N. D. 60, 111 NW. 609, 14 Ann. Cas. 960; Zink v. Lehart, 16 N. D. 56, 110 N. W. 931; McRae v. Hillsboro Nat. Bank, 6 N. D. 445, 69 N. W. 193; ■Grower v. Schafer (N. D.) 197 N. W. 599.

The weight and value of the testimony, as well as the credibility of the witnesses, is for the jury. Butler & Henry v. Taylor (Iowa) 192 N. W. 851; Morris & Co. v. Saar (Iowa) 191 N. W. 793; Hultberg v. Hultberg (N. D.) 193 N. W. 607.

*676AYh'ore the evidence' is substantial and various conflicting inferences may be drawn therefrom, the Supreme Court will not disturb the verdict of a jury. Goetz v. Zeif (AATis.) 195 N. AAA 874; *4 G. J.*p. 773, notes 1 and 2.

In so far as the evidence is subject to opposing inferences, it must, upon a review thereof, be regarded in the light most favorable to the support of the judgment. Woodward v. Glenwood Lbr. Co. 171 Cal. 513, 153 Pac. 951; Hassell v. Bunge, 167 Cal. 365, 139 Pac. 800.

In reviewing a question of this kind, all the inferences reasonably possible from the evidence favorable to the plaintiff (the prevailing party) must be indulged by this court. Bandle v. Commercial Bank, 178 Cal. 546, 174 Pac. 44; Mali See v. North American Acci. Ins. Co. 26 A.L.R 127.

Whether the evidence was evenly balanced or whether it preponderated in favor of one or the other of the parties, was a question solelv for the jury. Fullerton Lumber Co. v. Hosford (S. D.) 176 N. AAA 1017.

A jury may disbelieve the most positive evidence even when it stands uncontradicted and the judge cannot take from them their right of judgment. Hotter v. Detroit United E. Co. (Mich.) 171 N. AAA 514.

Statement.

Bronson, Ch. J,

This is an action by plaintiff against the city to recover the balance due for work in laying sewer and water connections. In defense, by way of counterclaim, the city asserts that plaintiff is liable to it for his negligence in connection with such work whereby the city was compelled to pay, after suit, a judgment in favor of one Mrs. Porter for damages sustained by reason of her failing upon the sidewalk adjacent to the place where plaintiff performed his work.

This is the second appeal in this identical ease. See Keller v. Fargo, 49 N. D. 562, 192 N. W. 313. In the former appeal this court reversed the judgment entered upon a verdict in plaintiff’s favor. Such reversal was largely upon the ground that under the instructions and record as made in the former trial the jury may have determined that the snow and ice upon the sidewalk and not the mud thereon was *677the proximate cause of the injuries sustained by Mrs. Porter. - In that case this court said: — •

> “In our view of the record, the inquiry in the instant case Avas narroAved, by reason of the findings of the jury in the Porter case, to the question of whether or not the mud accumulated and Avas on the sidewalk by reason of the negligence of Keller. The question as to the effect of such mud being upon the sidewalk was conclusively determined in the Porter case, for in that case it was determined that the mud was the eaiise of the injAiry.”

Upon the retrial of this action wherein the principal issues litigated were the negligence of plaintiff and the proximate cause of the injury SAistained by Mrs. Porter, the same witnesses testified as those who testified in the former trial excepting the Commissioner of Streets. Substantially the same evidence Avas again offered by both parties. The controversy, so far as questions of fact were concerned, narroAved itself to a determination of Avhether the mud upon the sidewalk at the locus in quo came from the work, or as a result of the work, performed by plaintiff in connection with the laying of sewers and wafer connections, or came from foreign and independent causes or places. It is Ainnecessary to restate in detail the facts. Reference may be made to the former opinion for a full statement of the facts. Sufficient it is to state that at this trial evidence was offered on the part of the city to the effect that the mud on the sidewalk came from, and as a rcsAilt of, plaintiff’s work. On the other hand, on the part of the plaintiff, evidence Avas offered to the effect that the mud on the sidewalk where Mrs. Porter sustained her injuries was not occasioned by reason of plaintiff’s work bAit came from a sort of beaten path or place not far distant and was tracked to the locus in quo by pedestrians. In other words, the specific issue was made for the consideration of the jury whether the proximate cause of the injuries sustained by Mrs. Porter, on account of the presence of mud upon the sidewalk, was through plaintiff’s work and negligence, or otherwise.

The learned trial court, who Avas also the presiding judge in the case of Mrs. Porter against the defendant city, instructed the jury that the plaintiff aaus negligent in his failure to comply with the ordinance ■in refilling trenches excavated and in not keeping same in good order after Dec. 24th, 1919, but that saacIi negligence on plaintiff’s part did *678not render plaintiff liable unless it was the proximate cause of the injury sustained by Mrs. Porter. He further instructed the jury that the placing of the two piles of dirt on the sides of the sidewalk at the locus in quo by the plaintiff, in the manner in which they were placed and left, constituted negligence per se and that if the mud on the sidewalk between such piles which caused the injury to Mrs. Porter was on the walk as a result of the action of the elements of nature upon the dirt constituting such piles, the plaintiff was liable and that, if the jury, after considering all the evidence, should find that the injury to Mrs. Porter would not have happened except for the existence and location of such dirt piles in close proximity to the said sidewalk in question, then it was their duty to find for defendant. He further charged that the jury should not take into consideration any evidence relating to snow and ice on the sidewalk; that the physical cause of the injury to Mrs. Porter was established, in the action against the city, as mud on the sidewalk between the two piles of dirt, concededly placed there by plaintiff. But the jury were further instructed that if it found that the mud which caused the injury was the result of causes entirely foreign to such heaps of dirt and having no relation thereto, it then was their duty to find for the plaintiff; in other words, if they should not find that the presence of mud upon the sidewalk resulted from the existence of the piles of dirt left at the edge of the sidewalk by plaintiff. At the close of the evidence defendant made a motion for a directed verdict which motion was overruled. Defendant has appealed from the judgment entered upon a verdict returned in plaintiff’s favor.

Upon this appeal the city maintains, in connection with some 33 specifications of error, that the trial court erred in excluding certain photographs and Mrs. Porter’s notice of claim for damages; in permitting plaintiff to introduce much evidence of methods pursued by plaintiff in filling the trenches constructed so as to excuse the manner in which the work was done and noncompliance with the ordinance; in permitting evidence to be introduced concerning water on the sidewalk and of mud on the sidewalk across the whole front of the lot in question thereupon enlarging the scope of the inqiriry by the jury. Further, that the trial court erred in its instructions to the jury, in not directing it to return a verdict in defendant’s favor for the reason that upon the *679physical facts no logical inference can be drawn other than that plaintiff’s negligence was the proximate cause of- the injury. Other contentions are similarly made concerning the court’s instructions to the effect that the instructions placed an improper burden upon defendant city with reference to proof of negligence and the proximate cause of the injury, and that, in any event, the verdict as returned is contrary to the instructions of the court for the reason that there exists no credible evidence in the record contradicting or rebutting the fact which establishes plaintiff’s negligence in not complying with the city ordinance.

Opinion.

We are of the opinion that none of defendant’s contentions can be sustained. Mrs. Porter’s notice of claim is incorporated in the judgment roll of her case against the city and was received in evidence. The question of the admission of the photographs, some taken at a date considerably later than the time of the accident, was properly within the discretion of the trial court. The question of whether the trial court granted to plaintiff a wider latitude of proof than the scope of issues warranted is eliminated by the fact that the trial court, in its instructions to the jury, specifically found that plaintiff was negligent and that, his work, as performed, constituted negligence per se, and specifically limited, for the consideration of the jury, the issue to the question whether the mud came from the piles of dirt erected by plaintiff or from his work, or otherwise. The trial court’s charge to the jury was fully as favorable as defendant could expect. The law of the case was settled in the former appeal and many questions now presented by the defendant were determined in the former appeal. IJpon a review of the record concerning the proximate cause of the injuries sustained by Mrs. Porter we are satisfied that the record presents sufficient evidence upon which the minds of ordinary reasonable men might differ so as to form for the jury a question of fact and that, therefore, the verdict of the jury finds support in the evidence. The judgment is affirmed with costs.

Christianson, Johnson, Biruzbll, and Nuessle, JJ., concur.