The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-03-29
Decisions of the Supreme Court

In the supreme court. state of North
Dakota.
David j. Rober, as administrator, VS..
Northern Pacific Railway Co., appel
liant.
J.. Where, in a suit for death by
wrongful act, 1T is claimed, that the
deceased was run over by an engine
of a railway company at a street
crossing, and some of the evidence
showed that on the night in question
a man could have been seen at a dis
tance Of thirty feet and the outlines of
a box car al a distance of from $50
to 200 feet, but the evidence also show
ed that, he night was very cold and
stormy and hat a strong wind was
blowing with a velocity of from thirty
to forty-five miles an hour, that the
thermometer registered IS degrees be-
low zero; that the crossing was not
lighted; that there was a conflict as
to whether there was any tail light
upon the engine, and the evidence
showed that between 10 and IL o'clock
a hackman drove close to an engine
upon the track, which the evidence
tended to show was the one which ran
over the deceased, without seeing the
same or hearing any bell or signal
sounded, held, that the presumption of
ordinary care, which is based upon the
instinct of self preservation, IA not
overcome as a matter of law, and that
the question of c~ontributory negligence
was one for the jury.
2. There is a legal presumption that
one has not committed suicide.
3. There is no legal presumption
that a crime has been committed, or
that under circumstances such as those
in the case at bar, the deceased was
murdered and his body thrown upon
the track.
Ia L. Al .1,Eyv 30 - -z9J-r--u
pany to keep a proper lookout for
travellers at a highway crossing with
in the limits of cities. Where, there
fore, in an action for death by wrong
full act, the mangled remains Of the de-
ceased were found upon a railroad
crossing across which a switch engine
Of the railway company had repeatedly
passed during the night, and the en-
gineer in charge OF said engine teSti-
fled that he knew nothing about the
fact or that the deceased had been run
over until told by other parties, and
the railway company pleaded a total
Ignorance of the of the accident,
held, that the jury were justified in in
ferring negligence on the part Of said
company, and that there was evidence
tending to show a failure to keep a
proper lookout at said highway cross
ing. .,- ...
5. A negligent custom nay be prov
ed. Evidence, therefore, is admissible
that an engineer who is charged with
having failed to ring his bell and to
give proper crossing signals at a par
ticular time. failed to do so at. the
same crossing on the same night in
question, while engaged in the same
general switching transaction.
6. In a suit brought under section
1886, r, c. 1905, for death by wrong
full act, the introduction of mortality
tables is not necessary to a recovery
of substantial damages, either to show
the expectancy of the life of the de-
ceased or of his benefciaries. At the
common law, standard tables, and in
North Dakota, the Carlisle tables are
proper and competent evidence, but
their introduction is not absolutely
necessary.
Z. Evidence examined and held, to
sustain the verdict both as to the
question of negligence and the dam
ages awarded.
(Syllabus by the court.)
Appeal from the district court OF
Morton county. Nichols, J.
Action to recover damages for death
by wrongful act. Verdict and judg-
ment for plaintiff. Defendant appeals
Affirmed.
Opinion by Bruce, J.
Watson & Young and Il. T. Conmy
Fargo, for appellant.