The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-02-26

NCiSHddHL anu appellant
i. Plaintiffs horses were killed by
railway train of defendant after es
Gaping from a yard enclosed by a fence
| consisting, on one side, of only one
wire and located In close proximity to
defendants track. Defendant pleaded
that leaving the horses in the yard SO
fenced, in close proximity to the track,
constituted contributory negligence,
and the court charged the jury that
this did not constitute contributory
negligence. Held: Error.
2. Plaintiff was inquired of on direct
examination as to the condition of the
right of way with reference to snow
and other things lying there. Objec-
tion was made on the ground, among
others, that it was not within the is
sues, the action having been brought
for negligence In the running OF the
train and not in the maintenance of
the right of way. The objection was
| over-ruled Held: For reason stated
in objections and under circumstances
Of this case, error,
3. In answer to the question above
stated the witness testified that oats
were sprinkled on the track. Upon
appellants motion this answer was
stricken out and the jury cautioned not
to consider the same. Noreference was
made to 1t in the courts charge. In
view of the evident purpose of the
question and answer and issues as
framed by the pleadings, it is held that
striking. out the answer did not cure
the error, although this court is not
prepared to say that it was reversi
NJ, 60
ible. should abandon the prevailing
practice of admitting improper evil
dence and relying upon curing the err
ror by subsequently striking it out.
4. A charge which may lead the jury
to believe that the defendant must
make out its defense conclusively, or
| by undisputed evidence, is reversible
error
5. Section 1897, r. G. 1905, provides
that killing or damaging any horses,
cattle, or other stock by the cars or
locomotives along railroad shall be
prima facle evidence of carelessness
and negligence on the part of the cor
poration. In an action for killing or
injuring stock proof of ownership,
killing or damaging, and It's value,
makes a prima facie case; but when
the plaintiff relies solely upon the stat
utory presumption Of negligence and
the testimony of those in charge of the
running of the train is unequvocal that
everything was done that could be
done. after the discovery of the stock
upon the track to prevent it's injury
and that the train was properly equip
ped and all appliances in good order.
and no conflicting evidence is offered
as to material questions and the cir
stances are not in conflict with such
evidence. the prima facis case made
under the statute is overcome and the
defendant Is entitled. on proper motion,
TO directed verdict.
s. Whether the statutory presump-
ton has been fully met and overcome
is in the first instance a question of
| law.
T. Under section 1888, r. G. 1905, 1t
is lawful for certain stock to run at
! large between Nov. 1 and April ], ex-
cept in counties where the electors, vote
otherwise. Held; the object of the
statute permitting stock to run at large
during the months named, is to per-
| NIT it to feed upon commons and un-
| fenced lands without liability Of owners
! for damages done on such lands, and
| not to impose upon the owners of such
premises any greater degree of care
for or towards such stock than is re-
quired at other seasons of the year,
8. The statute quoted only affects
the remedy or measure of damages in
case of injury by such animals, and
as applicable to acts of negligence by
the owner of the premises onto. which
/
such stock Is trespassing.
| 9. Following the previous decisions
of this court. 1t is held that as to tres
passing stock, the duty of the railway
/ company and its servants is to use or
| binary care not to fnjure it after its
discovery upon the track or right of
way.
10. Ely VS.. Rosholt, II N. d. $50, dis
tinguished.
CSyllabus by the court)
Appeal from district court Williams
county, Goss. j.
Action for injuring and killing stock
belonging to plaintiff by one of defend
ants railway trains. Verdict for plain
tiff
From an order denying a new trial
defendant appeals.
! Reversed.
! C. j. Murphy and Arthur LIE Sueur
for appellant
H. B. Doughty and A. L. Knauf for
respondent.
Opinion OF the court by spalding, j.,
all concurring, Ellsworth, j.. concurring
specially.
H. c. Delaney, ]. J. Delaney and