Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-05-02
Supreme Court

In the Supreme Court, State of Nortf
Dakota, October Term, 1912. ,.
Arthur Ness, plaintiff and respondent,
VS.. Great Northern Railway Company,
| corporation, defendant and appellant.
l.. Plaintiff, while in defendants en-
| ploy as a helper in its shops at Devils
! Lake, met with an accident while as
sisting a machinist in forcing a bushlnE
| into a link by means of an air press.
The injury VAS caused on account Oh
in the link falling from the press table
onto pIaintiif's foot Ihe compla,n'
charges negligence on defendants part
LIST, in furnishing u defective ar press;
and End, in furnishing unsuitable ana
defective blocking irons for the safe oper-
| alton of said press. So.
Evidence examined, and held insuffici-
cnt to authorize a submission to the jury
of the question of defendants negligence
! on either Of the alleged grounds.
with whom he was engaged as a helper
admit that there was no lmpertectiols
to their knowledge, either in the machin-
cry or appliances in use by them at the
time of the accident, and the proof also
shows that there were a lot of pieces
of iron near at hand suitable for block
ings from which they were at liberty
to make a selection. The blocking irons
used mad been in use for such purpose
for a long time prior to the accident
tIIu lulll oili VIZ ''>''
or should have known, as much or more
about their condition as the master.
Held. in the fight of such facts, that
no recovery can be had. even though the
irons used for blocking were not the
most suitable for such purpose.
g.. Evidence as to the alleged defect
in the air press on account OF certain
play or looseness at the points where
such press was fastened by bolts to side
arms and to the table, examined. and
hn1l pSntfiniatt Innn Whjrh IN base a
recovery, it being apparent that such al
legged defect in no manner could have
caused the plaintiffs injury.
(Syliabus by the Court.)
Appeal from District Court, Ramsey
County, c. W. BUTTE. j..
From IA judgement in plaintiffs favor,
and from an order denying u motion
for a new. trial. defendant appeals.
Reversed with directions.
Murphy g. Duggan, Grand Forks, \.
Frederick Il. Cuthbert, Devils Lake,
n. d.. Arthur r. Smythc, Devils Lake,
y. d., for respondents.
Opinion of the Court, by Fisk, j.
Great West Life, saNssuranace Company.
appellant. VS.. \. II. Shumway, R. Goer
an" t. : Section eli , @S' i4 5's'ssf RI e. iSo5. expressly
authorizes .4s fqREi + ;oi exceptions a} insom to
potency and irrelevancy at the time the
same is offered in evidence. 1t is ac-
cordingly held that defendants objec-
ton, made for the first time during the
reading of the deposition, to certain tes-
between plaintiff II its agent was pro-
perly sustained, it appearing that such
account was kept by plaintiff in books
Of account, which books were the best
evidence.
2. Respondents are sought to be held
liable to appellant Assurance company
us suretieS, upon Il certain bond given
to indemnify it against the acts and de-
faults of its agent. one Shum way, the
containing a stipulation that the
and at all times, be accepted ana re-
ccived and shall in fact b. as against
the agent and sureties prima laclc evil
dcnce of the amount OF indebtedness If
the ugent to the company, and IF his ac-
courts, dealings and tla1slc;icns wih
trial plaintiff sought to Introduce ex-
hibits &C. and "D', the former purport-
ing to be Il mere copy Of the company's
ledger account with Shumway, and the
such account claimed to have been taken
from plaintiffs books.
Held, that such testimony was in
and properly excluded.
The witness whose deposition was
offered in evidence testified to his mere
~ N'"S " ~" iA
debted to the plaintiff company IN the
sum Ct S454. 34.'
Held. that such testimony was clearly
incompetent and was properly stricken
on defendants motion.
I. \ certain letter written by Shun-
to the company shortly prior to
the termination OF his agency contract.
was. Oft cred in evidence tor the purpose
OF proving an admission by ShumWay
that he vas indebted to the company
in a certain sum. :. proper foundation
was laid for the introduction Of such
letter and the same was competent proof
as against these respondents to having
been written while Shumway was in the
plaintiffs employ under the agency con-
tract. Such letter is somewhat ambigu-
Gus as to the amount of the Indebtedness
admitted, but the same is interpreted
as an admission that there was due
from ShumWay to the company on the
date such letter was written, of the
of $l59.OO, and it will be presumed
in the absence of any proof to the con-
trary that such Indebtedness continued
down to the termination of the agency
contract, and also at the time Of the
commencement Of this action. Defend
have offered no evidence to rebuff
such presumption, it is held that the
the trial court should have ordered judg-
mcnt for the sum with interest.
Appeal from District Court, Ramsey
From a tjudgiilent'in defendants fav-
or ,dismissing the action, plaintiff APP
peals.
Reversed with directions.
Murphy 4 Duggan, Grand Forks, n.
d.. for appellant.
=. ); McClory. Devils Lake, y. D.,
a ana Miller d & Bismarck, n. D.,
Opinion of the COurt nv Fisk