Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-03-30

eVluenCe Bhat inc Sdtu guaranty was
attached to the contract aud was take,
by the principal to the guarantors and
| signed by them and then was seat by
the said principal to the vendor or qua.
unies and that the said vendor wrote
to the principal accepting the same AM
fornished goods hereunder. held. thar
it was not necessary to prove an Nc
%ccptance of the guaranty BY the seller
| or guarantee personally made or writ
ten to the %guarantors.
(Syllabus by the Court
Appeal from the district court of
barnes county. Templcton, Special
JuaEe
Action against principal and guaran-
| tors upon Il contract OF sale. for the
breach of the same. Judgment for plain
tiT. Defendants (guarantors). appeal.
Affirmed.
Opinion by Bruce. j.
Page L. Englcrt. Valley City, for APP
pcllants.
Herman Winterer and d. S. Richie,
Valley City. for respondent.
David j.. Rober, as Administrator.
vs..
Northern Pacific ny. Co., Appellant
1. Where. in q suit for death by
wrongful act. it is claimed that the de-
ceased was run over by an engine of
a railway company at Il street cross
ing. and some Of the eviucnce showed
that on the night in question a man
could ave been seen ut Il distance
- 4 lt,t o,,l t1,, outlines AZ ~ hay
car at u. dstance Of from $50 to 200
feet. but the evidence also showed that
the night was very cold and stormy and
that a strong wind was blowing with
Il velocity of from thirty to forty five
miles an hour; that the thermometer
registered eighteen degrees below zero:
thai the crossing was not lighted: that
Ethere was a conflict as to whether there
was any tail-light upon the engine. and
the evidence showed that between 10
and II o'cloc 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 pre-
sumption of ordinary care, which is
based upon the instinct of sclf-preser-
walton, was not overcome as a matter
of law. and that the question Of con-
tributory 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 muir
dercd and his body thrown upon the
track.
4. 1t is the duty of, Il railway COM
| pany to keep a proper lookout for trav-
elers at a highway crossing within the
limits 0: cities. Where. therefore, in
an action for death by wrongful act, the
mangled remains Of the deceased were
found upon a railroad crossing across
which a switch engine, of the railway
company had repeatedly passed during
the night. and the engineer in charge
OF the said engine testified that he
knew nothing about the fact or that
the deceased had been run over un-
tir told by other parties and the railway
company pleaded a total ignorance of
the cause OF the accident. held. that
the jury were justified in inferrins neg
ligence on the part of the said com
pany. and that there was, evidence tend
ing to show a failure to keep a proper
lookout at said highway crossing.
5. a negligent custom may be prov
en-. 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 80 ut the
same crossing on the same night in
question and within an hour Of the al
legged accident, while engaged in the
same general switching transaction. "
6. In a suit brought under Section
1855, Revised Codes 1905, for death by
wrongful act, the introduction Of NOR
tality tables is not necessary to a re-
covery of substantial damages. either
to show the expectancy Of the life Of
the deceased or OF his bcneticiaries. At
the common law. standard tables. and
in NorthDakota, the Carlisle tables arc
proper and competent evidence. but
their introduction is not absolutely nee
essary. aE.
Z. Evidence examined and held, to
sustain the verdict both as to the ques-
ton of negligence and the damages
awarded.
(Syllabus by the Court.) w..
Appeal from the district court of Nor
ton county, Nuchols. J. ~
Action to recover damages for death
by wrongful act. Verdict and judgment
for plaintiff. Defendant appeals.
Affirmed. .
Opinion by Bruce, J.. .
Waston & Young and +. II. Conmy,
Fargo. for appellant.
NJ. A.. Hildreth, Fargo, for respond
cnt.
c. J. Murphy, Respondent,
Judson ,uP. Casselman and the United
States Fidelity & Deposit Co., of Bal
timore. Nd, s
Appellants.
Held. That the decision of this court
In Frank B. Lown, Trustee, plaintiff
and respondent. VS.. Judson 7. Cassel-
man, defendant and appellant, sustain
ing an attorneys lien against a judg-
mept collected pending this suit, by an
execution sale Of real estate SUISSE
quently redeemed by Casselman. renders
moot the questions in volved in this
appeal. and the claim in litigation hav-
ing thus been paid, the lower court is
~ - f-F~-As-..'.- JE ~