Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-10-13

tiff, with others, was sent to do some
work at point 1900 feet west of the
station. On starting he was told by
the night operator that no trains were
coming and observed that the block
signal was out as notice to all trains
to stop at the station. When 1400
; feet west OF the starting point he
was struck by snow pillow running
as the first section of No. I. a limit
ed passenger train. The weather was
very cold, little wind was blowing,
and he, with his companions. wore
furlined coats with the collars turn
ed up and their caps pulled over their
ears and did not look back while 60.
ing the 400 feet. The bell in the en-.
CINE was obstructed by snow and ice
and could not be rung, but the whistle
could be blown. The jury found that
it was not blown and no warning was
given after passing a crossing sever
'al hundred feet west of the station
and it was conceded that no stop
was made at the station.
Held: That under the circum-
stances the court could not say, as
matter of law, it was negligence on
the part Of the engineer not to blow
the whistle after passing the station,
but that the question of negligence
yerdhts~eeence CMFWY MFWYP
was for the jury.
g. While, as general rule. track
or section men assume the risks
from dangers incident to their occu'
patton and must protect themselves
from approaching trains, especially
where not at a time occupied with
duties requiring their whole atten'
ton. there are exceptions to this rule
and among such exceptions are cases
in which circumstances and con-
ditions are extraordinary or exception
al, in which case the question of
contributory negligence may be for
the jury.
3. Held: That under the circum-
stances of this case the court could
not say. that in law the plaintiff
was guilty of contributory negligence
in not watching for trains while
walking on the track a distance OF
1900 feet west from the station at
the village of Bartlett. and that it
was for the jury
4. In determining whether the
plaintiff was guilty of contributory
negligence the jury had rights to
take into consideration information
which he had received from the night
operator and the position of the
block signal, as we'll as other sur
rounding circumstances.
5. The question for the jury in
this case was whether an ordinarily
prudent person would have been
justified in not expecting train to
pass during the time plaintiff was &C.
cupied in walking from the station
to the place where he was overtaken
and injured.
6. The fact that the legislature has
required the sounding of whistle
or ringing Of bell at certain places
does not relieve the railroad CON-
pany from giving signal at other
places where none is expected by
statute. provided reasonable care for
the safety of it's employees or others
makes it necessary.
7. Certain minor questions regard.
ing the admission of evidence passed
upon.
Appeal from district court, Grand
Forks county. Templeton, J.
Action by J. P. Davey, against
Great Northern Railway company for
personal injuries.
Plaintiff had judgment. Order de-
nying new trial reversed and new
trial granted.
Murphy & Duggan for Appellant.
Calder & German and Guy C. H.
Corliss for respondent.
Opinion of the court by Spalding
j., all concurring.
Matilda Dieter plaintiff and appel
liant, VS.. John H. Frame, defend