The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-03-27
LATHR0P GRANTEE
ANOTHER TRIAL
SUPREME COURT GRANTED =. c.
LATHRoP NEW TRIAL IN DAM.
AGE SUIT AGAINST FARGO.
MooRHEAD STREET RAILWAY
co-HEARo HERE A YEAR AGO.

F. C. Lathrop, plaintiff in a damage
suit against the Fargo Moorhead
Street Railway Co. in which $4,000
damages was asked and $1,000 award
ed a year ago in the district court, has
been granted a new trial by the North
Dakota supreme court which reversed
the decision given a year ago. Lathrop
appealed to the supreme court and its
decision was announced today. M. A.
Hildreth appeared for the plaintiff and
the railway company is represented
by Stambaugh & Fowler.
The Syllabus.
Following is the syllabus:
In the supreme court, state of North
Dakota, october, 1911, term. F. C.
Lathrop, plaintiff and appellant, VS..
Fargo-Moorhead Street Railway Co.,
a corporation, defendant and respon-
dent.
1. After the jury in this Ease had
been out nearly twenty-four hours,
and had reported that they were un-
able to agree, the court, over the OBJ
lection of appellant, instructed the
members of the jury as to their du-
ties to make an effort to agree, such
instruction being too long to include
in this syllabus, and required them to
give. the case further consideration.
After considering 1t for about two
hours longer, they agreed. Held, that
in determining how long to hold a jury
for an agreement the trial court must
exercise a wide range of discretion,
depending largely upon the number of
facts to be found, and whether they
are simple or complicated; and that
the charge of the court was proper,
under the circumstances of this case.
2. At the request of respondent a
special verdict was required Of the
jury. but before delivering the inter-
rogatories to the jury the court an
swered certain of the questions, over
that as there was no substantial con-
fict in the evidence on the subjects
of such interrogatories, this action of
the court was proper.
3. The evidence was in direct con-
f1ict as to whether, al the time the
accident in question occurred, plant
if was driving north or south. across
defendants railway track. Among
the questions submitted were certain
questions framed with reference to the
negligence of the defendant. if the
jury should find he was going south;
and others in case it should find ne
was going north. Two Of these cues
tons were answered by the court, but
such answers were predicted upon the
possibility of the jury finding that the
plaintiff was driving north. when in
fact they found that the plaintiff was
driving south. Held, that it was nom
~prejudicial to plaintiff.
4. Following Acton v. Street Rail-
way Co., 129 N. w. 225, it is held. that
as a general rule the question is
whether the motorman did see, or
could have seer the plaintiff in a
place of danger in time to have
avoided the accident, by the use of
ordinary or reasonable care, or a
question to that effect, but that the
state of the evidence and the theory
on which this case was tried made it
unnecessary to determine whether the
If in time.
5. The answers to the interroga-
tories contained in a special verdict
must De consistent With edCn OJner OF
it will be set aside.
6. The code requires a special YER
dict to present conclusions of fact as
established by the evidence. and not
the evidence to prove them. Courts
should so frame the interrogatories of
a special verdict as to comply with
this provision.
Z. When a special verdict is requir-
ed, courts should not charge the jury
the jury on the general law of the case
further than is necessary to assist IN
answering each i~nterrogatory pro-
pounded.
(Syllabus by the court).
Appeal from an order and judgment
of the district court. Cass county, Pol
lock, J..
Reversed and a new trial granted.
M. A. Hildreth, for appellant; SIAM
baugh & Fowler, for respondent.
Opinion by Spalding, c. ].