The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1929-02-19
Decisions of
Supreme Court

supreme COurt u
State Of North Daketa
Charles H. Clark
Plaintiff and Appellant
vs..
N. Fcldman.
Defendant and Respondent.
"a In an action for damages aris-
ing out OF collision between q de-
livery truck and q pedestrian at q
street crossing, 1t is held that an In
struction to the jury on negligence
and contributory negligence which
omits to define the rights and duties
Of the parties as prescribed by para
graph OF Section 10 Of Chapter i62
Of the laws Of 1897. regulating high
way traffic, was prejudicial to the
plaintiff In that it did not give to
the Jury an adequate basi; upon
which to determine the reasonable
ness Of the conduct of the parties
affected.
a. A motorist in approaching
crossing used by pedestrians ct IN
intersection Is required to b vigilant
and TO have his car under control
10 as not TO endaneer the lives and
limbs Of pedestrians.
81 Under paragraph Of Section
IL Of Chapter l62 Of the laws Of le27.
Z driver Is required to yield the right
Of way to q pedestrian crossing the
highway on q regular pedestrian
crossing. Is therein defined, but the
statute does not absolve pedestrians
from exercising due care to avoid
collisions with vehicles.
90 The st ..tute referred to In
paragraph above puts the necessity
Of continuous observation on the
driver when approaching an inter-
section and the like necessity upon .
pedestrian In crossing the street else
where than ct Z crossing.
(6) Questions Of negligence and
contributory negligence must b de-
termined with reference to standards
Of conduct prescribed by law.
90 Where the contributory neg
ligence Of the plaintiff Is relied upon
to defeat the right Of q pedestrian to
r ,cover on account Of the negligence
Of the driver Of q truck, such con-
tributory negligence must be found
to have been q proximate cause OF his
injury. It Is held that an instruction
Is prejudicial under the evidence,
which authorize / the jury to find for
the defendant II the plaintiff was
negligent and II his negligence had
anything to do with bringing about
his injuries.
O. The burden of proof is on the
plaintiff to ,how that the operator Of
the truck was the agent or servant Of
the defendant and that he was acting
within the .cope Of hts employment,
but where It iS shown that the truck
was owned by the defendant and was
operated by one who was employed
for the special purpose and In the
manner J., which such trucks are
usually operated q presumption arises
that the agent was acting within the
scope OF his employment. It Is held.
under the evidence, that the question
q to whether the empl0ye was en-
gagged in the course Of his employ
ment ct the time Of the collision was
q question OF fact for the jury not
withstanding tie undisputed evidence
Of the employe that he was engaged
upon an GRAND Of his own.
(Syllabus by the court)
Appeal from the district court Of
Ramsey county, Hon. G. w. Buttz
Judge.
Reversed and new trial granted.
Opinion Of the court by Birdzell, ]
J. G. Adamson OF Devils Lake, and
Francic Murphy. Of Fargo, attorneys
for appellant.
f. T. Cuthbert, Of Devils Lake. at.
torney for respondent.
State OF North Dakota ex rel A
q. Sorlie, Governor. ct al. con-
shutting the Depositors' Guar
anty Fund Commission Of the
state Of North Dakota.
Plaintiffs and Appellants
V0.
The First National Bank OF
Whitman, North Dakota. . ma
tional banking corporation.
formerly Lambs Bank OF Whit
man, North Dakota.
Defendant and Respondent
1. Where Z state bank operating
under the provisions Of the Deposi
tors Guaranty Fund Act converts In
to q national bank pursuant to tn
provisions Of Section 5l54, Rev. Stats
u. g.. Its liability on account Of obi
cations against the Guaranty Fun
ceases and 1t Is no longer subject +
the authority and requirements Q
the Guaranty Fund Commission m
cannot be required to make and I'll
statements with the commission
showing It's average daily deposit'
Notwithstanding the provisions
Section - Of the Guaranty Fund Ac
! (section 5220bl4. Supplement 1926
providing that, III any bank desire
to 20 into voluntary liquidation Q
change to q National Bank before tn
assessment provided for In section te
becomes due and payable, the provi
sions Of this Act shall not relieve sal
bank from the payment Of any -
sessments then due from It to the d.
positors' Guaranty Fund, nor froI
any liability to become due on &C
!, count Of losses in banks which a
closed at the time such bank apple
to liquidate or change into Nations
bank, and Section % Of the Guar
anty Fund Act. (section 6220b30, SuE
plement 1929 providing that no ban
operating under the Depositors' Qua,
. Speedy Relief
! for Sore ThrOa