The Fargo forum and daily republican., 1913-04-15
Decisions Of the Supreme Court

In Supreme Court, state Of North
Dakota, October term, 1912. Price, E.
Morris, plaintiff and appellant, VS..
Minneapolis, st. Paul & Sault Ste.
Marie Ry. Co, defendant and respond
ent. 4. 3D.,
Plaintiff sues for barley alleged to
have been lost in transit from a car
load shipped from Bordulac, N. D., to
Superior, Wis. To make proof of loss
evidence was offered that the barley
was weighed when taken into the ele-
vator and again when loaded there
from into. the car, with the weights
corresponding. The elevator agent tes-
tifies that the elevator scales balano-
ed; that he loaded the entire car as
one transaction; that he had been in
charge of the elevator and similar
work at that place for two months
prior to that time; thae he understood
the scales and knew how to use them:
and that these weights taken were
correct and accurate; that some TWEEN
ty different weighing operations were
necessarily made in loading the car:
that the total of these weights and the
amount of the barley placed in the car
was 62,440 pounds; that the car was
then Immediately sealed and taken
charge of by the carrier. The evidence
shows that on arrival of the car at
bulk and the state weighmaster's off,
cial certificate Of weight of this bar
ley showed but 57,4S0 pounds as the
amount delivered by the carrier to the
consignee For this difference In
weight, 1850 pounds of barley, plaint-
iff seeks to recover of the carrier as
for barley lost in transit. The trial
court directed a verdict dismissing the
action and plaintiff appeals. Held:
ID Plaintiff must establish by a
fair preponderance Of the evidence
that a portion of the grain received by
the carrier was not delivered at Su-
perior.
may be made by evidence OF the
the carrier for transportation and evil
dence of it's weight at destination,
when the proof of such weights Is
reasonably certain and satisfactory.
(S) That under the evidence plaint-
if has established a prima facie case
of loss of some grain in transit, sum-
cient to submit such question OF loss,
and amount thereof, to the jury TO de-
termine from all the evidence consid-
cred with the matters of which they
may take judicial notice.
(4) Certain language used in Miller
" N. P. Ry. Co., 18 N. ID. 10, 11S N. w.
344, which might be understood as
holding that such loss coulu not De
thus established by proof OF weights
alone and without other proof of loss
in transit, disapproved as misleading
and inaccurate.
(SylIabus by the court)
Appeal from the district court OF
Foster county, Corey, j.
Reversed and case remanded for
new trial.
r. r. McCue, of Darlington, attorney
for plaintiff and appellant; f. p Kel-
ly, of Carrfngton, attorney for defend
ant and respondent.
In the Supreme Court, state of
North Dakota, October term. 1872
State Of North Dakota, plaintiff and
RESPONDENT VS.. Emmett #. Apley, de-
fendant and appellant.
From a conviction for statutory rape
defendant appeals. Held:
(1) It was error to exclude cross
examination tending to show that the
prosecutrix, about year before the
alleged rape upon her by defendant,
had been an inmate of house of
prostitution for a period of three
weeks.
(2) Such testimony, when elicted
under cross examination of prosecu-
trix, was admissible as proof OF uY-
chastity and immoral character OF the
prosecutrix as bearing directly upon
her credibiiity, even though she was
under the age Of consent and her con-
charged as constituting the offense
was inmaterial.
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