Grand Forks herald. [volume] (Grand Forks, N.D.) 1916-1955, 1917-07-18


Railway company. defendant and
respondent.
Syllabus: 1. Common Carriers De-
fined. Under section $685. Compiled
Laws of 1913, every one who offers to
the public to carry persons, property
or merchandise is a common carrier
OF whatever 1t thus offers to carry. A
street railway company operating its
lines of street railways upon the
streets Of a city, or extending from
one city to another, or into rural
communities, he principal business
or which is conveying passengers
from point to point on it's lines for
hire, is a common carrier.
2: The fellow servant rule. 50 far
by section 1904 Of the Compiled Laws
of 1918 abolished. and in the language
OF the statute, Every common carrier
shall be liable to any Of its employees.
or IN case of the death Of an employee.
to his personal representative, for the
benefit of his widow, children or next
OF kin, for all damages which may
result from the negligence Of any Of
It's officers, agents or employees, or by
reason of any defect or insufficiency
luz to its negligence in its cars, en-
zines, appliances machinery, track,
roadbed. ways or works. Such statute
is not unconstitutional, MOI does IL
contravene any of the provisions Of
the state or federal constitutions, nor
does 1t ~contravene the fourteenth
amendment to the federal constitu-
tion, which provides that mo state
snail make or enforce any laws which
shall abridge the privileges or immun-
tiles Of citizens Of the United States,
8. Common Carriers nd Servants.
Negligence. Contributory NeEligence.
Under section 1905 Compiled Laws Of
1913, the questions ofsnegligenee and
contributory negligence are exslusive-
" questions for the jury, and where
the negligence of the employer is
gross as compared with the contribu-
tory negligence of the servant, the
fact that the servant has thus been
guilty of contributory negligence shall
not defeat the recovery Of damages.
but the damages, by reason of such
co%ntributory negligence Of the serv-
ant may be diminished by the Jury in
proportion to h amount OF negli-
sence attributable to such rva or
employee.
4. Courts. Taking case from Jury.
Error. When. When there is CONFLICT
ing testimony els to a certain subject
matter involved in the litigation from
which minds Of average men might
draw different conclusions, the ques-
ton is n for the jury. Held in this
a there was such conflicting testi-
mony, and the court erred in direct
ing a verdict for the defendant.
4. Courts. Composition of. Constitu-
parts. AS applied to the tribunal
which tries issues Of both law and
1act, the court is not composed OF the
Judge who is presiding at the trial.
me U IN such case is composed Of
the judge who presides or is acting
at h trial Of the issues of law and
IA ry IN ElrNh 0NyY~k . !.
jury. The judge is only one Of the con-
sutuent parts Of such court, and as
sue his duty is to define the law Of
the case. The jury is also a material
constituent part of the court in such
case ana Its exclusive duty Is to ass
ana render Judgment upon the facts
In he case. Each constituent element
OF the court as just defined, has ex-
elusive jurisdiction within Its own
sphere.
.. Where the conductor Of q street
car maintains an action against the
defendant, his employer, q street rail-
way company, on the ground Of the
DEFENDANTS negligence In keeping ana
maintaining its switch In a. loose. i'm
proper and imperfect condition. which
caused n car of which the plaintiff
was IN charge to be thrown from the
track while passing over such switch.
the condition Of the switch ana the
negligence of the defendant, in main.
tanning such switch In its imperfect or
improper condition, IL It were 81
maintained was a question exclusiyaIy
for the jury; and where there was
CONNECTING testimony as to the rate sc
speed OF the q at the time such car
passed over such switch, he cor.
tributory negitgence Of the servant or
servants IL any was also q uuest;on
exclusively for the jury under The
statute hereinbefore referred to. All
questions OF negligence and contribu-
jury. lns
Appeal from the district court Of
cas- county; Chas. A Pollock, Judge.
Reversed.
Opinion Of the court by Grace. ].
Bruce. Oh. J.. and Birdzeli, 81. CON
u in result.
Christianson and Robinson III
~concurring specials.
o respondent.
"a: "A. Hildreth. Fargo, attorney Tor
appellant