The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1906-03-30
THE MINNEAPOLIS JOURNAL.

was kindled upon his lands adjoining rail
road track by. sparks from its locomotive.
The defendant may rebut this presumption by
sufficient proof Of a different and total cause
or Of such construction equipment, maintenance
and operation of the engine was required in
the exercise of care commensurate with all the
circumstances of the particular case. Such re-
buttal proof must conform as to character and
extent to the standard by which in ordinary
cases is measured the proprety of holding
by trial court that defendant against whom
a prima facie case of negligence has been made
is free from fault as matter of law,
The adequacy of such proof by a defendant
must also be determined in view of any other
facts appearing in the testimony in addition to
those sufficient to give rise to the statutory
presumption which tend to show negligence.
Unless the rebutting evidence as to both the
facts and the differences reasonably to be drawn
from them is conclusive, the question is for
the jury.
not to have been sufficient to have justified
the trial court in taking the from the
jury, because; a.-
First-The plaintiff introduced affirmative cir
cumstantial evidence OF negligence in addition
to proof Of the facts essential to raise the
Second-The rebuttal testimony depended in
part on evidence Of witnesses whose credibility
was for the jury.
Third-It consisted largely ~ Of expert test1-
mony to the effect that no engine could be
practically SO operated not to start fires at
the distance here involved, which was incon-
elusive ana, not, ~entIely consistent, 81 w ana
of expert testimony that the engine was op-
Grated in careful manner, which was based
upon too narrow an hypothesis. .
The court properly excluded from evidence the
book of rules of defendant, which contained
private rules regulating the conduct of defend
ants own business. ,as~ . s.-.r.
order reversed and a new trial granted
.,.... -.- --Jaggard, ].
Lot E. wasser James D. Farrell, partners
| as Farmers Merchants & Mechanics Realty
company, respondents, VS.. Western Land Sc
curities company, appellant. .....
Syllabus: Frst-The. discretion of the trial
court which had during trial allowed defendant
to twice amend its answer and the plaintiffs
to thrice amend their reply, Is not abused by re-
fusal to allow on motion for a new trial AL
amendment to the answer, involving complete
of the verified admissions Of the answer filed,
and inconsistent with much of the testimony,
because a stakeholder of the defendant at the
time of the transaction ignorant Of the
proceedings
Second-A corporation assume the obliga-
lions Of a contract made before its organiza ton
or make a contract concerning the Same
| subject matter with the parties to the original
agreement. 81 - - %i>[-' '.ns ..I
Third-A breach Of contract by one party
excuses performance by the other. z-.v -.
Fourth-Upon unexcuse failure for I'm.
reasonable time by a party to contract tt
deliver promissory notes payable in the future,
damages may be recovered presently by the
other party to the contract The amount for
which the notes were to have been given will
be prima facie the measure of damages.
Fifth-Where a broker is employed by each
party with notice that he is acting in the
matter for the other, and with such notice each
agrees to pay him his commission, he can re.
cover from both =
Order affirmed. -Jaggard, J.