Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-04-08
Supreme Court

~~~~~~S< <"SSSS<&SDSA&
Frank kelnKe, plalnJiff and respon~
dent. vs. Minneapolis, St. Paul
and Sault Ste. Marie Railway Com
pany, corporation, defendant and
appellant.
l. Evidence examined and although
unsatisfactory and entitled to but
slight weight, it was sufficient to go
to the jury for a finding as to the
running of certain trains which might
have killed stock of plaintiff
2. Ruling on certain evidence ex-
amined and passed upon.
3. Section 1927 R. C. 1905 makes
the killing or damaging of horses or
other stock by cars of locomotives
along the railway prima facie evi
. dence Of carelessness and negligence
on the part of the railway company.
Held, that when the ownership and
! killing are proven a presumption of
law is raised that such killing was
caused by defendants carelessness
or negligence, but that this presump-
ton when relied upon by plaintiff
without other evidence of negligence,
| requires evidence Of less weight to
rebut it than would be necessary if
plaintiff made proof of actual negli-
gence.
4. In this state, as has been re-
peatedly held, railway companies are
not required to keep a lookout from
their locomotives for stock trespass-
ing upon their right Of way, outside
of public crossings, depot grounds
and similar places.
3. The negligence for injury to
stock trespassing upon a railway
track or right of way. outside of
crossings, depot grounds, etc., is the
negligence Of the railway after the
discovery of the stock in a place of
danger
6. Evidence examined relating to
certain trains of defendant company
passing over the track where plain
tiff's stock was killed, and, Held, to
rebut plaintiffs case made only by
proof of ownership and killing, and
to have entitled the defendant to a
directed verdict, so far as the case
related to such trains only.
7. When the plaintiff in an action
against railway company for injury
to stock trespassing upon it's track,
relies solely upon the statutory pre-
sumption of negligence, and does not
submit direct proof as to which Of
several trains inflicted the injury, the
trial court SHOULD instruct the jury
as to the law applicable to each train
which it is shown might have killed
h1 or Wi 1ofi %o
evidence relating to each such train.
8. Certain instructions examined
aid, Held erroneous because they per-
nit the jury > find, as it undoubtedly ;
did, that one of certain trains as to
which the presumption of law referred !
to have been overcome. killed the
stock belonging to plaintiff.
(Syllabus by the court.)
Appeal from district court Richland
county, Allen J.
Reversed and a new trial granted. |
!. A. Dwyer and Wolfe & Schneider,
for appellant.
John l.. Erdahl, of counsel
Dan R. Jones and Purcell & Divet
for respondent.
Opinion by Spalding C. J.
State of North Dakota, in supreme
court, April 1912 term.
The First National Bank of Nome. a
corporation. plaintiff and respon-
dent VS.. James Mahoney, defen
dant and appellant.
1. "A finding, in an action to fore.
close a chattel mortgage. that the
mortgagor has disposed of part of |
such mortgaged property and has fail
ed to take proper care thereof and |
that the same is running down and |
deteriorating, is finding of ultimate
facts, and proper as far as it goes.