The Fargo forum and daily republican., 1914-06-06
DECISION OF THE
SUPREME COURT

| w. w. Corbett, plaintiff and respond
| ent VS.. Great Northern Railway Co.,
| defendant and appellant.
| (11 A railroad company owes no
duty to the owners of animals which
| are allowed to trespass upon its right
to take steps to present striking
htme, nor is it bound to pre-
sumo that they may be there:
the engineer to safeguard the lives. of
himself and the crew and passengers of
| his train Is higher than his duty to
protect the trespassing animals. IT,
ably prudent engineer, under all of
| the circumstances of the case, that
collision would be unavoidable and that
1t would be safer to continue operat-
ing 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 of recovery for
the owner of the injured stock.
CD 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 up
on.
(3) 1t is not error in a case where
horses have been run down by an ap-
preaching train and the question at is
sue Is whether the action could reason
ably have been avoided, to allow one
who has shown himself reasonably
ing the tracks made by the animals in
the mud and snow and that they ap-
parently galloped along said track,
even though he cannot and does not
testify as to whether the galloping was
before or after the accident, the fact
that they did gallop and that the tracks
were made by the horses being undis-
puted.
issue in case is whether the engineer
actually saw the stock on the track
and the exact time at which he saw
them, it is not error to question the en-
gtneer on crosse examination as to his
duty to keep lookout when approach
ing crossings.
go Where a new trial is granted as
a matter of favor to the plaintiff and
the former trial and appeal he enter
tanned an incorrect theory of his case,
the costs of such former trial should
be borne by such plaintiff, even though
and on the second appeal.
co. Where costs are improperly
taxed against a party, it is error to
impose terms upon him as a condition
precedent to obtaining a review of such
taxation.
% The cost fee or charge of IS
which is allowed by paragraph 8, of
section 7174, r. c. 1905, ito either par
ty when a new trial shall be had, for
all proceedings after the granting of
and before such new triap' does not
belong to the former trial, nor yet to
the former appeal, but to the successful
party upon the second trial. Such costs
are costs of the new trial or proceed
ings and not of the former appeal.
(Syllabus by the court)
Appeal from the district court OF
Williams county, Fisk, ]. Action to re-
cover damages for the loss of horses
killed upon a railroad track. Judg-
Modified. Opinion of the court by
Bruce ]. Goss, j., being disqualified, did |
not participate.
Knauf & Knauf. of Jamestown, North |
Dakota, attorneys for plaint1H and
Murphy & Duggan. of Grand Forks,
North Dakota. attorneys for defendant
and appellant.
From RenviIIe County.
F. H. Stolze, plaintiff and appellant |
VS.. P Sheridan, defendants and res
pondents.
G) Even if drain, the purpose of
which is to take care of the house sew
age a we'll as the storm waters Of an |
incorporated city, may be constructed |
under the provisions of chapter 23, r:
c. 1905, as amended by chapter SO or
laws of 1911. petition which states |
that the said drain is for the best in
terests of the city of M-and a beneht |
to the health, convenience and welfare
Of the people of said city, discloses a
drain, the principal benefits of which |
will accrue to such city and in such a |
case the petition should be signed by |
a sufficient number of the citizens OF
such municipality to satisfy the board |
of drain commissioners that there is a |
public demand" therefor and where the |
petition is signed by at the most TWEEN |
ty persons and the record disCloses that |
there are 223 property owners in the |
no such public demand is
shown.
(2) Where among the leading pur
poses of a proposed drain are benefits
to the health, convenience and welfare
of the people of any city or municipal
ity, the signature of a sufficient num-
Der of the citizens of such municipality
to satisfy the board of drain commlSs-
toner's that there Is a public demand
for such drain is a jurisdistional pre-
board of drain commissioners has no
authority to order a survey or to take
any further steps in the matter and an
action for an Injunction restraining
any further proceedings is not prema-
ture which is brought after the petit
tion has been presented and survey
had or ordered but before any other
have been had under sec
tion 1921, r. c. 1905.
Appeal from the district court or
Renville county, Leighton, J. Action to
enjoin the construction of drain.
Judgment for defendants quashtng a
temporary injunction. Plaintiff ap-
peals.
r. II. Grace, of Mohall, North Oak.
ota. and Noble, Blood & Adamson, of
Minot, North Dakota, attorneys for
plaintiff and appellant:
Geo. r. Robbins and Geo. A. Bangs, |
of Grand Forks, North Dakota, attor-
neys for defendants and respondents