Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-03-14

~ yNANy 1A~S -
ton thereon.
3. The fact that the holder of
negotiable prOmiasOrN note in du'
course notified the maker thereo
that it was in its hand for collection
rather than DIS collateral, is immater
tally, especially where it is shown b,
evidence that the use Of the word
"for collection" was an i%nadvertalce
4. The failure to enforce or at
tempt to enforce collection of a prin
cjpal note before bringing upon col
lateral when due is no defense to at
action upon the collateral by the hold
er thereof.
(Syllabus by the Court.)
: Appeal from a judgment Of the dis
tr'ct court of Sheridan county, Hon
w. II. Winchester, j.
Reversed. Opinion of the court b,
Spalding, G. J.
Thorstein Hyland, Of Stanton, N
D.. for plaintiff and appellant.
No appearance for defendant and
respondent,
IN THE SUPREME COURT;
STATE OF NORTH DAKOTA
Farmers Mercantile Co., plaintiff
and appellant, VS.. Northern Pacific
Ry. Co., defendant and respondent,
l. Gross negligence is, to all i'll
tents and purposes, nc care at all. II
is the omission Of the care which even
the most i%nattentive and thoughless
seldom fail to take OF their own con.
Germs. 1t evinces a reckless tempera.
ment. 1t is a lack Of care which is
practically wilful in its nature. 1t is
an omission of duty which is akin
to fraud. 1t is the absence of even
slight care.
2. Evidence examined and held
not to show gross negligence.
3. Where goods have been received
and unlcaded and the freight thereon
paid by the consignee, but part only
in actually and physically delivered
account Of the fact that the con-
signee does not have drayage facili.
ties sufficient to remove all, the liza
bility Of the railroad company as "a
warelouseman extends to such pOr-
ton SO LETT with it, unless at the
time CT SUCH partial delivery 1t gives
notice to the cOnsignee that it will
not insist upon storage charges and
will no logger hold possession Of
the property as d wareh0useman.
A. Where goods arc placed in a dc.
pct or warehouse in a room in prof..
nifty to which is a stove which can
only be regulated by opening the
door,, and within three and six feet
Of SUCH stove is inflamable matter,
it lis. a. question of fact for the jury
whether the leaving Of such door OPP
in order to check the draft and
prevent the fire from burning out,
constitutes lack Of ordinary care.
5. 1t is also q question for the jury
whether the leaving such door open
in tile proximity of the inflamable
was the cause Of the confla-
which, it is proved, destroyed
the goods. there being no other pro-
bable cause disclosed by the evil
dence.
6. A plaintiff is not bound to ex-
clude the possibility that an accident
have happened in some other
way than that contended for by him.
He is only required to satisfy the
jury by a fair prependerance of his
evidence that his injury occurred in
the manner he contends for.
- ~ - \Irv>. t>1 e. r,1,r ~. n @, IN ~ G,
bearing upon the question of a loss
or injury and they aaord room for
fair minded men to conclude there
from that one theory Of the case is
supported than the other, the
question cannot properly be with
from the jury.
s. A cause being shown. which
might produce an, accident, and it
further appearing that an accident
OF that particular character did occur,
it is a warrantable inference. in the
absence of showing of other cause.
the mi known was the operative
in bringing about the result.
.. Where in such Il case the cvid-
ence is SO uncertain as to leave 1t
clear and probable that the
resulted from any n Of a
number Of causes that might be sug-
then and in that case a YER
dict for plaintiff would be pure specu-
Iation and could net be sustained;
but where the evidence, although cir
Cumstantial. is such that it would
appear possible that the injury result
ed from any one of several causes
and yet it points to the greater pro-
liability that it resulted from the
cause charged by the plain
Lift, 4 non-suit should not be grant
ed.
10. II upon q fair construction that
4 reasonable man might put upon
evidence or any inference that
might reasonably be drawn therefron
conclusion of negligence can be
arrived at or justified. then the de-
is not entitled to a non-suit
but the question of negligence should
80 10 the Jury.
lSyllabus By the Court.)
eEhtpcal from the district court Of
county. Nuchols, j.
s,AettOn for damages for loss Of
freight by fire. Judgment for defend.
ant Plaintiff appeals.
Reversed, Opinion Of the court by
Bruce j,
mn E ~ ~