Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-06-06

! w. W.. COIiDcJl, EldlIiIIA aAu
ent,
Great Northern Railway Co., Defend.
ant and Appellant.
l) A railroad company owes no
duty to the n of animals which
are allowed to trespass upon its right
of way to keep a lookout therefor or
to take steps to prevent striking them
until it has discovered them, nor Is 1t
bound to presume that they may be
there. Even after such discovery, the
duty of the engineer to- safeguard the
lives of himself and the reW and pas
sengers of his train is higher than his
duty to protect the trespassing ami
mails. II, therefore, it would appear
to be a reasonably prudent engineer,
under all of the circumstances of the
case, that a collision would be un.
avoidable and that it would be safer
to continue operating the train at the
same rate OF speed than to attempt
to stop or to slow down the train,
such action and failure to stop or slow
down the train would, not constitute
a ground for recovery for the owner
of the injured stock.
GU The questions of negligence
and of contributory negligence are,
where there is any material conflict
in the testimony, questions of fact for
the jury, rather than the court, to
pass upon.
(3) 1t is not error, in a case where
horses have been run down by an
approaching train and the question
at issue is whether the action could
reasonably have been avoided, to al
low n who has shown himself rea-
sonably qualified to testify, to testify
concerning the tracks made by the
animals in the mud and snow and
that they apparently galloped along
said track, even though he cannon
and does not testify as to whether
the galloping was before or after the
accident, the fact that they did gal
lop and that the tracks were made by
the horses being undisputed.
(4) Where n of the questions at
issue in a case is whether the engi-
neer actually saw the stock on the
track and the exact time at which
he saw them, it is not error to ques-
ton the engineer on cross-examina-
ton as to his duty to keep a lookout
when approaching crossings.
(5) Where a new trial is granted
as a matter of favor to the plaintiff
and is made necessary by the fact
that on the former trial and appeal
he entertained an incorrect theory
OF his case, the costs of such former
trial should be borne by such plain
tin, even though he is successful on
the second trial and on the second ap-
peal.
(6) Where costs are improperly
taxed against a party, 1t is error to
impose terms upon him az a condition
precedent to obtaining a review of
such taxation.
O The cost fee or charge of s.
which is allowed by paragraph 3, OF
Section 7174, r. G. 1908, 'to either
party when a new trial shall be had,
for all proceedings after the granting
OF and before such new trial" does not
belong to the former trial, nor yet to
the former appeal, but to the sue
cessful party upon the second trial.
Such costs are costs of the new trial
or proceedings and not Of the for.
mer appeal.
(syIIabus by the court.)
Appeal from the district court Of
Williams County, Fisk, ]. Action to
recover damages for the loss o.
horses killed on the railroad track.
Judgment for plaintiff. Defendant ap-
peals.
Modified. Opinion of the Court by
Bruce, J. Goss, J., being disqualified,
did not participate. ..
Knauf & Knauf, Of Jamestown, N.
d., attorneys for plaintiff and respond
ent.
Murphy & Duggan, Of Grand Forks,
N. D., attorneys for defendant and ap-
p~ellant.