The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1901-10-26
VERDICT SET ASIDE.
SUPREME COURT GRANTS NEW
TRIAL IN CASE OF sOURs VS..
GREAT NORTHERN
JUDGMENT WAS FOR $1,000
Stockholders of Old st. Paul Athletic
Park Association VIII Have to
Pay 100 Per Cent ASSESS
ment-Other Decisions.

ment-Other Decisions.
The regular weekly budget from the
supreme court yesterday consisted of
seven decisions, in three of which the
Judgment of the lower court was re-
Tersed.
In decision by Justice Collins, the
court reverses the trial court and grants
a new trial in the case of c. H. Sours,
respondent, VS.. The Great Northern Rail-
way Company, appellant. This is the Sec
Ond time that the case has been before
the supreme court, and the appeal was
from verdict of $3.50 for the plaintiff
Sours, it was shown, was an employe
of the railroad company on duty in the
Como yards, and was injured by being
run down by a caboose which was shunt-
ed onto side track where he was to de-
liver a lantern to the conductor of pas
Senger train, by order of an assistant
yarimaster. Justice Collins, in his opin-
ion, reviews the testimony at some length
and his decision is that although Sours
Was acting under orders at the time he
was injured, he might have avoided dan
ger to himself by being properly v.gilant.
In that connection he says: THE acct
dent was unfortunate for the plaintiff
but to permit him to recover would be
10 hold that railroad employees, while
working among and around tracks, may
omit to use their eyes and may rely en-
tirely upon signals, such as shouts, to
protect them from injuries"
The court, in a decision written by
Chief Justice Start, upholds the lower
court in the 100 per cent assessment upon
the stock of the old st. Paul Athletic
Park association. There are in all 112
stockholders, and of that number there
are thirty-EVe against whom Gains are
not collec.able, leaving seventy-seven
solvent stockholders, whose stock sub
scTiptiens range from 800 to $1,000. The
total amount considered collectable is $15,-
zoo, and the liabilities of the association
amount to $16,466.26, of which $1,000 con-
sists of expenses of the receivership.
Following are the syllabi in all of the
cases filed yesterday:
c. II. SoCrs, respondent, VS.. Great North
ern Railway Company, appellant.
A railway employe is guilty of contrib
utory negligence, which will defeat his
right to recover for injuries sustained in
the course of his employment where
such injuries substantially result from
dangers so obvious and threatening that
3. reasonably prudent man, under similar
circumstances, would have avoided them
If IN his power to do so, due regard be-
ing had to all of the circumstances of
the particular occasion
Evidence examined and considered in
the case at bar. Held. as a matter OF
tiff sufficient to preclude recovery was
conclusively imputed and established.
Order reversed and new trial grant
ed. Collins, j.
Phillip Potts, plaintiff; st. Paul Athletic
Park Association, defendant; H. F.
Stevens ct al, stockholders, appellants,
VS.. Sodowic d. Hause, receiver of St.
Paul Athletic Park Association ct al,
respondents.
The provisions of Laws 1899, chapter
70 CIR hold to nov
the Indebtedness of the corporation, APP
ply to actions begun before it's enact
ment if no prior proceedings have been
taken therein to enforce the liability of
the stockholders.
The commencement of an action to
sequestrate the property of corpora
ton by creditor and his claim
limitations both as to the corporation
and its stockholders. London & N w.
Mfg. Co. VS.. st. Paul Park Imp. Co., So
n. W. S72, followed.
That the trial court in this case did not
err in assessing the stockholders to the
full par value of their stock. Orders at
filmed. Start, c. j.
Milton B. Whitney, appellant, VS.. John
Wagner, as sheriff of Ramsey county,
Minnesota, respondents.
Declarations of officers OF corporation
within the scope of their authority are
evidence against the corporation if other
wise material and relevant. But such
declarations are binding upon the cor
I,,ratiOn only when made in the course OF
or in connection with the performance
of the authorized duties of such officers.
The declarations of an agent cannot be
received in suit to which he is not
party to- establish the alleged fact that
he and not his principal is the owner Of
the property in controversy.
The declarations of a person alleged
to have been in possession of property at
a given time as to his title thereto or
IS to the character of his possession are.
roS admissible in an action to which he
l. not q party unless the fact of his. pos
session is first established by evidence
Independent of his declarations.
Rules applied and held that the trial
court in this case rightly excluded evil
Cence of the declarations of an officer
o: a corporation as to his ownership OF
property claimed by it.
Evidence considered and held that 1T
justified dismissal of the action by the
- Start, c. j.
Martin J. Hughes, as administrator of
The estate of ]. ]. O'Brien. deceased,
respondent, VS.. Patrick Meehan and
James Meehan, co-partners as P. & J.
Meehan, appellants
The provisions of Laws 1898, chapter
20, do not apply to case tried by the
&C Urt without a jury. motion made by
a defeated party after findings of fact
and conclusions Of law have been filed
in such a case ''for Judgment notwith-
standing the findings, and if denied for
a new trial. is Irregular practice at
least, although it has herein been treat
ed and disposed of solely as a motion
TO. a new trial.
Certain assignments of error, set out
verbatim in the opinion, considered and
disposed Of, part thereof being held in
efficient. Order affirmed.
Collins, ].
Peter Miller and Michael Miller, respond
ents, VS.. Ayers Layne William Sand
rock, Dennis Tracy and Daniel McCor-
nick, appellants.
Che granting or refusing of motion
for new trial on the ground of acct
dent or surprise rests in the discretion
If the trial court, in the exercise of which
an appellate court will not interfere ex-
cept in a clear case of abuse of such dis
cretion.
It is held in this case that the trial
court did not abuse it's discretion in
granting plaintiffs motion for new trial
AA,