The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1905-12-22

looked and listened for the train at that point
the law conclusively presumes either that he
did not look and listen. or that IL he did look
and listen or both. he afterwards heedlessly
disree arded the knowledge thus obtained and
negligently went into an obvious danger.
Negligence of the defendants employees in
failing to whistle or ring bell at a crossing
is no excuse for negligence on the part of the
person about to cross, in failing to use his
senses.
That the train which collided was an extra
did not relieve either party to the collision from
the duty of the exercise of care.
The presumption that one who WAS killed while
crossing railway track looked and listened be-
fore attempting to cross 1t is destroyed where
plaintiff introduces direct and affirmative evil
dence~ as to exactly what occurred and where
1t also appears from the undisputed evidence
that If the deceased had looked and listened be-
fore going upon the crossing he must have seen
and heard the train approaching.
Order affirmed -Jaggard, J.
John F. Kelly and Norman Fetter as trustees
respondents, vs.. Citizens Mutual Fire associa-
tion, appellant.
Syllabus: fire-insurance policy for 81. 500
on stock of merchandise, when delivered to
the assured contained the usual clause In the
printed portion that it would become void :if
the assured now has, or shall hereafter make
any other insurance ON the said property without
| the consent Of the company" There was also
attached to the policy a rider as follows: Eff
| teen hundred dollars total concurrent insurance
Gncluding this policy consented to on mer-
In an action by the assured to reform the
policy to make it conform to the agreement that
other insurance was to be permitted and to
ENFORCE payment, a fire having occurred. Held:
| First-The provisions of the policy, with refer
ence to other insurance, were ambiguous and, in
| the absence of fraud lachesS the policy was
| subject to reformation and enforcement in q,
| proper action.
Second-The evidence was sufficient to support
| the finding that the actual contract was to per-
NIT other concurrent insurance.
| Th1rd-A soliciting agent, with authority to
| take applications for insurance and submit them
| to the company, and who is intrusted by the
| company with policy to be delivered to the
assured, is the representative of his principal
in all matters naturally connected with and
incidental to procuring the application And il
during such negotiations and prior to the de-
livery of the policy such agent is Informed that
| other insurance Is carried by the assured, the
company is bound by such knowledge.
Order affirmed. Lewis, ].
Arthur B. Mcknight, respondent, vs.. Minneapo-
lis, st. Paul & Sault Ste. Marie Railway
company, appellant
for personal injuries the verdict is held not
! so excessive as to indicate passion and preju-
dice the part of the jury to extent suf-
hcient to require unconditional trial of
the action. and that the order of the trial court
reducing the verdict, as condition of denying
new trial. is sustained by the record.
Order affirmed. Brown, J.
The Chamber Of Commerce of Minneapolis, re-
spondent, vs.. John E. Wells ct al, doing bust
Il ness under the firm name of John E. Wells
& Co., appellants.
Syllabus: The rule that pleading IS entitled
| to liberal construction when assailed on de-
nlurrer applied to certain facts set forth in the
) complaint and demurrer thereto held properly
overruled.
Order affirmed. Brown, ].