The Fargo forum and daily republican., 1909-12-03

In safe condition, and to supervise the
same for the purpose OF keeping 1t in
repair and free from any changes or
additions which he in the exercise OF
reasonable care has cause to antici-
pate will be made or placed there.
Such supervision does not, however.
extend to changes or additions which
the original structure from It's nature
or the manner of its construction does
not invite or induce or which were not
within the reasonable contemplation of
the party at the time he placed II
there.
4. In an action in negligence the
question whether the alleged fault of
the defendant or failure on his part
to perform legal duty, was the prox-
innate cause OF the injury, is one of
law for the court to be determined up-
on the material facts presented with
such inference as may be properly
drawn therefrom.
5. In the state of fact assumed to
exist, party under license from a city
placed upon a principal street a one
inch water pipe fastened down to the
pavement on either side OF II a two
inch plank for the purpose Of protect
ing the pipe from injury and from be-
ing shifted from it's place upon the
street. Afterward, without his knowl-
edge, by some unknown agency and
for purpose that is not shown. man
ure was placed upon the pipe and upon
the planks placed to guard II and a
third plank was placed on top OF the
manure. This third plank was NOT
attached either to the pavement of
the street or to the planks placed to
guard the water pipe, but was loose
and movable. 1t was so placed upon
the manure chat pedestrians stepping
on one end at times caused the other
end to be raised a distance of from
five to ten inches from the street.
While in this position person using
the street in stepping over che loose
plank caught his foot upon it and was
thrown violently upon the pavement,
sustaining injuries for which he
brought an action in damages against
the city and recovered a Judgment
which the city paid. The city then
proceeded against the party placing
the water pipe and the planks guard
ing it on the street as an indemnitor,
alleging that the accident resulted
from failure on his part to keep safe
the structure so placed by him.
Held, That the party placing the
water pipe and the two planks to guard
it could not be said in the exercise of
ordinary care, to have in contempla-
tion that some other person would
change and add to the structure placed
and maintained by him by putting
manure on top of it and placing a loose
plank on top of the manure that would
rise to such height from the street
when stepped upon as to cause an
accident such as this, and that the ac-
cident did not resulC proximately from
the act of defendant in placing the
original structure or the failure to
perform any duty imposed upon him
thereby to keep the street safe.
(Syllabus by the courL)
Appeal from district court of Grand
Forks county; Hon. Chas. F, Temple
ton, judge. Action by the city of
Grand Forks against B. o. Paulsness.
judgment was entered in favor of
plaintiff and defendant appeals.
Judgment reversed and action dismiss
ed. Geo. A Bangs for appellant. F.
B. Feetham, for respondent.
Opinion by Ellsworth, Judge; all
concur except Morgan, C. j., not par
ticipating.