Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1915-05-01


in control of the plaintiff had a shorI
time prior to the accident ordered dis
continued and the plaintiff himself
was led to believe that such system
was not in operation and that the Gu
gineer would not rely thereon, blu;
would use every p~recautiOn TO give
him ample time to draw back from
said elevator, it cannot be said as n
matter OF law that such employe as,
sumed the risk Of the confusion OF
methods Of operation which arose
from the failure Of the master to ar.
range for a common system and to
make it known to all Of the parties
concerned.
(o) 1t is not error to refuse to al.
low photographs to be introduced III
evidence where the premises involved
are within three blocks OF the court
house and an inspection Is both prac.
ticable and possible.
6l The admission or rejection OF
photographs is largely within the dis
erection OF the trial court and whethe'
they are sufficiently verified or wheth
er they may be useful to the Jury arc
preliminary matters which are ad.
dressed to him.
90 Photographs are received, as
merely an aid to the Jury In applying
the evidence and if they tend to con.
fuse rather than aid the jury, they
should be excluded.
(S) To be admissible in evidence,
photographs should simply show con
ditions existing at the time in ques.
ton and photographs which show
more than this and with men in vari-
assumed situations in order toll
lustrate the claims and contentious OF
the parties should not be admitted.
90 The doctrine OF res ipsa loqui
tur will apply where the accident oc
ours through the breaking Of a stee
cable three hundred feet In length and
where such cable is not produced UP
on the trial by the defendant nor i
any proof introduced Of its condition
or inspection prior to the acciden
and the action was begun within
three months of the time when sucl
accident occurred and the only ex
cuse for its non-production is tina
counsel does not know where it is.
(10) If the negligence of the mas
ter or Of one for whose conduct tn.
master is answerable mingles wit!
that of M who stands in the rela
ton Of a fellow servant to the sor
want receiving the injury or of tn
negligence o fthe master or his rep
resentative is the proximate or eff
cient cause of the injury, the nIaste
will be liable and will not be allowcf
to escape liability on the ground tina
the injury also proceeded from thu
negligence Of one for whose conduc
he was not answerable.
ND The mere withholding or fail
ure to produce evidence which, unde
the circumstances would be eXpecte
to be produced and which is avail
able, gives rise to a presumption,
against the party withholding it. Tn
courts recognize and act upon the ma
ural inference that the evidence i
held back under such circumstance
because it would be unfavorable.
(12) Where the defendant does nc
ask the court to eliminate question,
which are raised in the pleadings fror
the Fjury's consideration, he canno
complain that an issue raised by sucN
pleadings is improperly submitted tt
the jury.
(13) The burden Of establishing the
defenses of c%ontributory negligence
and the assumption Of the risk is up
on the defendant.
(1D The charge Of a court to {
jury is entitled to a reasonable inter
probation. II. is to be construed as =;
whole in the same connectedaway If
which it is given and upon the pre-.
that the jury did not over
look any portion but gave due weight
to it as a whole. If when so con.
strued it presents the law fairly and
correctly and in a name not calcn
lated to mislead the jury, it will at
ford no ground for reversing the JUDI
ment, although some of its express
sions, if standing alone might be re
.garded as erroneous or because there
may be an apparent conflict between
isolated sentences, or because som,
Of them, taken abstractly, may hav'
been erroneous.
Appeal from the district court O.
Burleigh County, Nuessle, ]. Action
for personal injuries. Judgment TO;
plaintin Defendant appeals.
Affirmed. Opinion of the Court By
Bruce. J.%s Burke and Christianson
7JJ., 4cShcurs Fisk, g. j, and ,Goss, J
dissent:
Pr ]. Mclaughlin of St. Paul, MINI.
and H. bradley Of Bismarck, attor-
neys for defendant and appellant.
Andrew Miller and w P. Costello
Of Bismarck, attorneys for plaintiff
and respondent.