The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1914-05-29
OF THE
SUPREME COURT

Bovey-Shute Lumber Co, a corpora
ton, plaintiff and respondent, VS..
Charles Lakefeld, defendant and ap-
pellant.
Facts examined and held that denial
of defendants motion to vacate a de-
fault judgment, taken against him be-
cause Of failure of his attorney to an
swer, was an abuse of judicial dis
erection, and erroneous.
(Syllabus by the court.)
Appeal from the county court of in
creased jurisdiction of Ward county;
N. Davis, j.
Reversed. Opinion Of the court by
Goss, J.
Grace & organs, of Mohall, attor-
neys for defendant and appellant.
Greenleaf, Bradford & Nash, Of
Minot, attorneys for plaintiff and re-
spondent.
From Barnes County.
Thomas Christopherson, plaintiff
and appellant, VS.. Minneapolis, st.
Paul & Sault Ste. Marie Railway Co.,
a corporation, defendant and respond
ent.
l. The driver of a private convey
ance who collides with a train while
attempting to cross a railroad track
at a public crossing known by him to
be a very dangerous n on account
Of complete Instructions to his view
of the defendants train, and who,
knowing that a train was about due,
concededly did not stop n listen or
l exercise and precaution to ascertain
whether a train was approaching, ex-
cept to look around as he was driv-
ing when he knew his vision of the
track was completely o~bstructed, is
guilty of c~ontributory negligence as a
matter of law. :
2. Where the facts respecting the
failure to exercise care by the driver
of a team about to cross a railroad
track are conceded or uncontradicted,
and it can be said that reasonable men
| could not draw different conclusions
or differences therefrom, the question
of the contributory negligence of such
driver is n of law for the court.
3. Where the plaintiff and the
negligent driver of a private convey
ance were at the time of plaintiffs in
jury resulting from a collision with
defendants train at a railroad cross
Ing. engaged in a Joint enterprise, the
drivers negligence is imputed to such
plaintiff Inc no recovery car be had.
(Syllabus by the court.)
Appeal from district court, Barnes
county; j. A. Coffey. j..
From a judgment in. defendant.
favor, and from an order denying
new trial, plaintiff appals.
Affirmed. Opinion Of the cou By
Fisk, j.
Page & Englert, Valley City. N. d.
for appellant.
John L. Erdall and Alfred FL. Bright
Minneapolis, Mimi, and Lee Combs
Valley City, N. D., for respondent.
From Foster County.
August Gas, appellant, VS.. NortherI
Pacific Railway Co, a corporation. ant
Thomas Costello. respondents.
J.. In an action to recover damage,
defendants train at a public crossing
evidence examined, and held. tina
plaintiff was guilty of contributor,
negligence as a matter of law and tina
the trial court did not err in so doing.
2. Notwithstanding his contributor.
negligence, plaintiff inyokes the rule o
discovered peril. or last clear chance
Held, that such rule is inapplicable
both under the complaint, which alleg
es merely specific acts of negligenc
consisting of excessive speed in an
n preaching the crossing and failure t
give. suitable warnings, and under tn
proof, which conclusiveIy shows tina
the engineer used reasonable care t
avoid the accident upon d~iscoyerin
plaintiffs peril,
8. Where plaintiff In his complain
alleges merely specific acts OF negli
gence on defendants part, he will b
restricted on the trial to proof of sue
acts. Had the complaint contained
] general allegation of negligence in til