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


Opinion of the court by Spalding
J., all concurring.
J. f. Wells, plaintiff and respond
ent, vs.. City of Lisbon, a munich
pal corporation, defendant and ap
pellant
/. In prosecuting works requiring
excavations in the Travelled street
of city, a municipal corporation i:
bound to do so with due regard t
the rights of travellers in the vicinity
of the excavation and must use suct
precautions as are reasonably neces
sary for the protection of such trav
elerS.
2. The degree OF care required o
municipality in such case is ordi
nary care, and what constitutes or
binary care depends upon the cir
cumstances OF the particular case
and must depend largely upon atmos
pheric and other conditions.
g. Greater care is required in suct
case on the part of a municipality IL
snowy, dark or stormy night, thar
4. The evidence in this case be
ing conflicting as TO the precautions
which the appellant took on stormy
night to protect travellers from injury
by reason of an excavation in traV
eled street in the city, it is held that
the question OF defendants negli'
gence was properly submitted to the
jury.
5. The care required of traveller
in street of a city where excaVa
tons or other distractions exist, is
such as persons of common and reas
enable prudence ordinarily exercise
under like circumstances and must be
proportionate to the increased danger
from darkness or other atmospheric
conditions.
C. When defendants dray ap-
lant's street between and $50 p.
m, on the End day of January, only
one light was burning to warn tray
elers of danger from such excavation.
That light was placed in the middle
Of the street where there was no ev-
cavation but where the street had
ben obstructed by plang eighteen
inches above the surface on which
this light was hung, such plank Gov
ering the only safe part of the street
and the driver being unable to see
where the excavation was, assuming
that the light marked the place in a
snow drift, fell into the excavation
and was killed, the question of the
contributory negligence of the driver
was one for the jury, under these
facts and the surrounding circum-
stances.
7. The driver of plaintiffs team
was permitted to testify as to the
masner in which he had seen sim.
liar excavations in the same city,
protected as one reason for suppos'
ing the light markedlhe excavation.
Held that the admission OF such tes-
timony was not prejudicial but was
competent to aid the jury in deter.
mining the degree of care exercised
by the driver, if limited, as it was in
this case, to that purpose when Of
fered.
8. Objections to certain instruc
tions to the jury held without merit.
8. Plaintiff failed to notice of claim
with the city auditor in an attempt
to comply with he provisions of Sec
ions 2703 and 27O4, R. c., 1905.
Plaintiff assigned error because two
papers, each verified by the claimant,
were not filed instead of one. Held,
that inasmuch as the one notice filed
contained all the information requir'
ed by both sections, it was sutt1-
cient compliance with the statute
and that it is matter of Indifference
whether the whole information requir-
ed to be given the city council
contained in one paper or two IT SUI
ficient in substance to serve the pur-
pose intended.
Appeal from the district court of
Ransom county, Allen, ].
Action for loss of pair of mules
in an excavation in the street of
the defendant and appellant. Verdict
and Judgment for plaintiff and re-
spondent.
Affirmed.
Chas. S. Ego, for respondent.
Sidney ;. Adams, TOT appellant.
Opinion of the court by Spalding,
j., all concurring.
J. B. Davey, plaintiff and respondent
VS.. Great Northern Railway com.
pany. corporation, defendant and
appellant.
|. Defendants passenger station
is located at the western edge Of the
village of Bartlett. There are no
buildings or crossings west of the
station in the vicinity of said village,
but a passing track extends at a d.
tance of a few feet north of the main
track 1000 feet west of the station.
Defendants railroad had been block
AIDED for two days during which no
trains had passed Bartlett station.
At s o'clock in the morning the plain