The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1917-07-18

he Is charged.
appeal from the district. court OF
Judge.
Reversed.
Opinion OF the court by Grace, J.
Bruce, CHI. j., Christianson and Rob-
inson. ~, concurring specially.
From Cass County.
James Peterson, plaintiff and appel
liant, VS.. Fargo-Moorhead Street Rail-
way Co., defendant and respondent.
l. Common Carriers Defined. I'm
der section $685., compiled laws of
1913, every one who offers to the pub
lie to carry persons, property or mer-
ever 1t thus offers to carry. A street
railway company operating it's lines
of street railways upon the streets Of
city, or extending from one city to
another, or into rural communities, the
principal business of which is con-
veying passengers from point to point
on its lines for hire, is common car
rier.
Q. The fellow servant rule, so far
as 1t applies to common carriers, Is by
section 1904 of the compiled laws of
1914 abolished, and in the language of
such statute. Every common carrier
shall be liable to any of its employees,
or in case of the death OF an employe,
benefit of his widow, children, or next
of kin, for all damages which may re-
suit from the negligence of any OF its
ofacers, agents, or employees, or by
due to it's negligence in it's cars, en-
gines, appliances, machinery, track,
roadbed, ways or works" Such stat
ute is not unconstitutional. nor does
it contravene any of the provisions Of
the state or federal constitutions,
nor does it contravene the fourteenth
amendment to the federal constitu-
ton, which provides that, mo state
shall make or enforce any law which
shall abridge the privileges or immun-
tiles of citizens Of the United States"
3. Common Carriers and Servants,
Negligence, Contributory Negligence.
Under section 1905, compiled laws of
1913, the questions of negligence and
ly questions for the jury, and where
the negligence of the employer is
gross as compared with the contrib
utory negligence of the servant, the
fact that the servant has thus been
guilty of .contributory negligence
shall not defeat the recovery Of dam
ages, but the damages, by reason OF
such contributory negligence OF the
servant, may be diminished by the
jury in proportion to the amount OF
negligence attributable to Such serN-
ant or employe.
4. Courts, Taking Case from Jury,
Error, When. When there is conflict
ing testimony as to certain subject
matter involved in the litigation from
which minds of average men might
draw different conclusions the ques-
ton is one for the jury. Held in this
case, there was such conflicting testi-
mony, and the court erred in directing
a verdict for the defendant.
s. Courts, Compositions of, Con-
tribunal which tries issues of both
law and effect, the court is not com
posed Of the Judge who is presiding
is composed of the judge who pre-
sides or is acting at the trial of the
issues of law and fact in such court,
and also of the jury. The judge is only
court, aiSd as such his duty is to define
the law of the case. The jury is also
a material constituent part of the
court in such case, and its exclusive
duty is to pass and render Judgment
upon the facts in the case. Each con-
stituent element of the court, as just
defined, has exclusive jurisdiction
within its own sphere.
G. Where the conductor of street
car maintains an action against the
defendant, his employer, a street rail-
way company, on the ground of the
efe ndants negligence in keeping and
maintaining its switch in a loose, I'M
proper, and imperfect condition, which
CauSGQ the car Which, tue
was in charge to be thrown from the
track while passing over such switch,
the condition of the switch and the
negligence of the defendant in main
tanning such switch in its imperfect
or improper condition, IL it were so
maintained was question exclusive
ly for the jury; and where there was
conflicting testimony as to the rate OF
speed of the car at the time such car
passed over such switch. the contrib
~ he q
servants, IL any, was also a question
exclusively for the jury under the
statute hereinbefore referred to. All
questions of negligence and contrib
utory negligence are exclusively Tor
Appeal from the district court of
Cass county; Chas. A. Pollock judge.
Opinion of the court by Grace, ].
Bruce, CHI. j., and Birdzell' j." con-
Christensen and Robinson, IL, con-
curing specially. -.
From Golden Valley County.
H. C. Jensen, plaintiff and appellant,
VS.. NJ. K. Bowen, defendant and re-
spondent.
Syllabus:
Where an agent is employed TO
sell land for. another and to carry on
negotiations in relation thereto, ne
cannot, without the consent OF nosn
missions from both parties. This rule
is a rule of public policy.
q A broker who is employed as q
mere middleman- to bring two parties
together to make their own bargains
may recover an agreed compensation
from either or both, though neither
may know that compensation is ex-
pected from the other. If, however,
during the negotiations, ne is en-
=. At unftIal haTUAIn-
ing. he must make his. dual contract
for commissions known to both par
ties.
within the meaning OF the exceptlon.
when he has no duty to perform but
10 bring the parties together, leaving
them to negotiate and to come TO an
agreement themselves without any
aid from him. If he takes, or con-
tracts to take, any part IN I ne nsg Oh
ed as a mere middleman, no matter
how slight a part il may be. Nor does
il makes any difference that the price
WAS fixed by his hrst employer.
When a contract for double
commissions is proved, the burden of
nfoof is upon the broker to show that
he was merely a middleman and this
not merely at the inception, but
throughout the whole TRANSACTION.
Action for purchase price of grain.
counter-claim for commissions as
real estate agent.
Appeal from the district court OF
Golden Valley county; w. G. Craw-
Judgment for defendant Plaintiff
appeals.
Reserved
Opinion OF the court by Bruce. Oh. J.
Robinson, j., concurs specially.
From wales County.
Frank CSlinski, plaintiff and appel
ant. VS.. James Kowalski, John
czapiewski, and the township OF
Ardock, defendants and respondents.
syllabus: Where a section line
highway has been for many years To-
Gated. graded and estaolished , with