aforesaid. None of the trainmen or employes of appellant saw or knew the decedent was attempting to cross the track, but could have seen him before he went between the cars had they looked in that direction. The train was stopped within one half a car's length after the alarm was given. As to whether the bell was ringing or not, the testimony is somewhat conflicting. The above is substantially a correct statement of the facts as we gather them from the record upon which the district court, after the usual charge, submitted the case to the jury, which resulted in a verdict in favor of respondent for the sum of $5,000, for which sum judgment was rendered by the court. In due time appellant entered a motion for a new trial based on the bill of exceptions, which was overruled. The case is here on appeal, and appellant seeks to reverse the judgment because of numerous alleged errors as set forth in the bill of exceptions, most of which relate to the charge of the court. These voluminous assignments of error, however, when stripped of their verbose drapery, may be substantially and briefly stated as follows: First, the court erred in refusing to direct a verdict for defendant; second, the court erred in submitting the question of gross negligence on the part of defendant to the jury. At least these are virtually the only errors pressed upon the attention of this court by counsel in their brief.

The first of these alleged errors, it will be observed, calls directly in question the raison d'etre of the judgment itself, and is based on the insistment that the evidence is insufficient to justify the verdict in two particulars: First, it fails to show any negligence on behalf of appellant; second, the undisputed testimony shows that respondent's decedent contributed to the accident by his own culpable negligence. It is clear that, if these propositions are true, the motion to direct a verdict for defendant should have been sustained. This would be the case if only the latter were true, unless there is some evidence tending to establish gross negligence on the part of the employes of appellant in refusing to do what was reasonably necessary to prevent the injury after they had discovered the perilous position of the deceased, in which event appellant would be liable notwithstanding the contributory negligence of deceased. We are unable, however, to discover any evidence of this character in the record. We think there is some evidence tending to show want of ordinary skill and care on the part of appellant's agents in the management and movement of the train along the transfer track in the direction of the foot-path, under existing circumstances. They knew that this path was generally used by the public in going to and from the station, and therefore ordinary care required that they should have been on the lookout in the direction of said crossing in order to have discovered whether or not there was any one attempting to cross it, and they should also have blown the whistle and rung the bell while thus backing in upon this side track. We think the great preponderance of testimony shows that the bell was being rung at the time; but, as there is somewhat of a conflict in the evidence on this point, we shall treat it as a fact proper for the jury. This being true, appellant would undoubtedly be liable in damages for the injury unless the deceased contributed to the accident by his own negligence, in which event it is equally clear he cannot recover. Railway Co. v. Houston, 95 U. S. 702; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. Rep. 1125; Holland v. Railway Co., 18 Fed. Rep. 247; Rogstad v. Railroad Co., 31 Minn. 208, 17 N. W. Rep. 287.

The question, therefore, for consideration and determination, is whether the undisputed testimony, as disclosed in the record, establishes contributory negligence on the part of the deceased. The evidence, as we view it, shows that deceased was a man in the possession of all his faculties; that he left the station platform, and walked for a distance of 60 feet towards the transfer track, on which stood some 6 or 7 box-cars, which were separated at a point near the center from 18 inches to 3 feet, and attempted to pass over the track,

and between these cars, and while thus going from the platform to the transfer track there was being backed in upon said track, within full view and hearing of deceased, a freight train, consisting of 14 cars and a locomotive, moving at the rate of about 3 miles an hour in the direction of the cars between which he was to pass. Notwithstanding these facts, he either deliberately or thoughtlessly continued his walk, and stepped upon this railway track between these narrowly separated cars, just as they were thrown together by the contact of the moving train, and was caught between the bumpers, and fatally injured. It also appears from undisputed testimony that other persons, perhaps not so favorably situated as he, both saw and heard this train as it rumbled over and along this side track, at least two of whom, who were but a short distance from him, warned him in loud tones of voice, and by vigorous gesticulations, of the approaching train, which he failed to hear or see, or at least failed to heed, but continued his walk, and stepped as it were into the very jaws of death, looking down at the ground, seemingly oblivious to his dangerous surroundings. It seems to us a mere statement of the facts and circumstances under which the accident occurred not only shows conclusively that deceased did not exercise due and reasonable care, but that he utterly failed to exercise any care whatever, but either deliberately, recklessly, or thoughtlessly went upon this railroad track, always to be regarded as a place of danger, and especially so under the peculiar circumstances existing at the time of the accident. The fact that the train-men were negligent in not keeping a proper lookout, and in not ringing the bell, did not relieve the deceased of the duty and the necessity of exercising ordinary caution and care for his own safety. Want of ordinary care on the part of appellant in these particulars was no excuse for negligence on his part. It was his duty to have looked and listened in order to discover and avoid the danger of the approaching train, and not to walk heedlessly or carelessly into this place of possible danger. Had he used his senses he could not have failed to have seen and heard the train in time to have avoided the accident. If he neglected or failed to use them, and walked thoughtlessly upon the track, he was clearly guilty of culpable negligence which contributed to the accident and resultant injury, and he cannot therefore recover. If, using them, he saw the train, and yet attempted to cross the track, in the face of apparent danger, he, not the appellant, must bear the burden consequent upon his mistake and rashness. It is well settled that a railway track is a place of danger, and a person about to go upon or over the same, whether at a public crossing or elsewhere, is bound to do that which is ordinarily needful to ascertain whether or not it is safe to do so. Otherwise they assume the risk, and, if injured, they will not be heard to complain of others. These principles of law are so familiar and so well settled that we do not deem it necessary to buttress them with citations of authorities, but will simply refer to the case of Railway Co. v. Houston, and Schofield v. Railway Co., cited supra, wherein this doctrine is very fully and ably discussed and upheld. This rule, as laid down in these cases, is not only the law of this territory, but of nearly all the states of the Union where courts have had occasion to apply it. It is by no means a harsh or rigorous rule, but is just and reasonable, imposing no onerous burden or hardship on any one. Looking and listening are involuntary acts. We do both with but little or no exertion, and to do so requires the exercise of the least possible care. This rule is not invoked in favor of diminished liability on the part of railroad companies, but, as suggested by counsel for appellant, it is a wholesome and necessary rule in favor of human life. The application of this rule to the facts of the case at bar must of necessity result disastrously to respondent's claim, and in the reversal of the judginent of the district court. There is nothing upon which it can stand, as the evidence conclusively shows that deceased contributed to the accident by his own negligence.

As to gross negligence on behalf of appellant's employes, it is not alleged

in the complaint, nor is there any testimony tending to establish it. Hence the district court erred in submitting it to the jury, and the charge of the court in reference to this question was equally erroneous, as it called the attention of the jury to assumed facts of which there was no proof. The judgment is reversed, all the justices concurring, except PALMER, J., dissenting.

TERRITORY v. WEBSTER.

(Supreme Court of Dakota. October 11, 1888.)

INTOXICATING LIQUORS--LICENSE-POWERS OF COUNTY AND CITY.

Laws Dak. 1879, c. 26. § 7, provided that both the county, and any incorporated village, etc., therein, might require the payment of a license tax to sell intoxicating liquors. The charter of the city of W. provides that it shall have power to license, regulate, and prohibit the sale of intoxicating liquors. Held, that the city had not the exclusive right to license the sale within its limits.

Error to district court, Codington county; JAMES SPENCER, Justice.

W. S. Glass and T. V. Eddy, for plaintiff in error. Atty. Gen. C. F. Templeton and Dist. Atty. F. E. Van Liew, for the Territory.

THOMAS, J. This cause comes up on a writ of error from the district court of Codington county, and the facts in the case are substantially as follows: The plaintiff in error, O. J. Webster, was indicted by the grand jury of said county for the alleged unlawful sale of intoxicating liquors, to which said indictment he entered a plea of not guilty. On the trial of the case he admitted that he had sold intoxicating liquors in said county without first having obtained a license from the board of county commissioners, but claimed, and it was admitted by the territory, that said sales were made within the corporate limits of the city of Watertown, and that said plaintiff in error had a license from the proper authorities of said city for the sale of liquors. The case was submitted to the jury, and a special verdict was returned by them in accordance with the admitted facts, after which counsel for plaintiff in error entered a motion to discharge the defendant, O. J. Webster, which motion was denied by the court, as was also a motion in arrest of judgment made on the same day, and plaintiff in error was adjudged by said court to pay a fine of $100. It is contended by plaintiff in error that, under the facts adInitted, and as found by the jury, he was guilty of no public offense, and that the district court erred in denying his motions to discharge him, and in arrest of judgment. This contention is based on the insistment that the city of Watertown had the exclusive right to grant licenses for the sale of intoxicating liquors within its corporate limits. The general law of the territory regulating the sale of intoxicating liquors contains the following provision: "It shall be competent and lawful for both the county commissioners of any county, and also the mayor and city council or other authorities of any incorporated village, town, or city situated therein, to require the payment of the license herein provided; and the granting of the power to license or tax in any city, town, or village charter shall not be held as conflicting in any way with the provisions of this act; the intention being to allow both the county and any incorporated village, town, or city authorities to levy and collect a license for the sale of intoxicating liquors as herein provided, or as provided by the charter and ordinances of such village, town, or city." Sess. Laws 1879, c. 26, § 7. It is conceded by plaintiff in error that all villages, towns, or cities incorporated under chapter 24 of the Political Code, as well as the county, have the right to levy and collect a license for the sale of intoxicating liquors under the provisions of the act quoted supra; but it is contended that it is not competent or lawful for both the county and city or town to levy and collect a license in all cases for the sale of liquors where the city or town is created by special act granting a charter. This, of course, depends upon the powers granted in the charter; and as it is contended that the city of

Watertown has the exclusive right to license the sale of liquors within its corporate limits, it will be necessary to examine and interpret its charter, under which it is insisted such powers exist.

Section 26 of said charter, in reference to licensing the sales of intoxicating liquors, is as follows: "The city council of the city of Watertown shall have the power to license, tax, regulate, and prohibit auctioneers, peddlers, pawnbrokers, saloon keepers, dealers in intoxicating liquors, showmen, canvassers, circuses, shows, and exhibitions for pay, saloons, billiard halls, etc.: provided, however, they shall not grant a license to any person to sell intoxicating liquors for less than three hundred nor more than eight hundred dollars per annum. It will be observed that the charter as quoted supra does not in hæc verba grant the city of Watertown the exclusive right to license and regulate the sale of intoxicating liquors within its corporate limits. But it is contended by counsel for plaintiff in error that the charter confers upon the city the power to prohibit the sale thereof within said city, and for that reason it has the exclusive power to license and regulate it. We are unable to see the force of this proposition. The power to prohibit does not carry with it the power to license and regulate, et vice versa the power to license and regulate does not embrace the power to prohibit. They are entirely distinct and independent of each other. The legislature might have conferred the one without the other. It has seen proper to confer both upon the city of Watertown, or, rather, to have given said city the choice of these two modes of dealing with the liquor question, as they are incapable of being inforced at the same time. Prohibition prevents license and regulation, and the latter is inconsistent with prohibition. The city authorities of the city of Watertown have seen proper not to enforce prohibition within said city, but, per contra, have undertaken to exercise the power to license and regulate the sale of intoxicants therein. We shall therefore construe the provisions of the charter in reference to the power to license and regulate without regard to the power of prohibition. The exclusive right of cities, towns, and villages to license and control the sale of liquor within their corporate limits is unusual, and not in harmony with the system of legislation of the territory on the subject. Hence, before we can impute to the legislature the intention of conferring such a power, the language of the charter must be clear to that effect, and susceptible of no other reasonable construction. The charter under consideration is not of this character. It simply gives to the city of Watertown the usual right to collect a license for the sale of intoxicating liquors within its limits. There is nothing in said charter that either expressly or inferentially confers upon the city the exclusive right to do this in derogation of the right of the counties to collect a similar license under the general law of the territory. We are therefore of the opinion that Codington county had the right to demand and collect a license from all persons engaged in the sale of intoxicating liquors within its limits. Hence we conclude that the plaintiff in error, not having obtained a license from the board of county commissioners of Codington county, was guilty of the offense charged in the indictment, and the judgment of the court, based on the verdict of the jury, was proper, and the motions to discharge said Webster, and in arrest of judgment, are properly overruled. The judgment of the district court is in all things affirmed. All the justices concurring.

HARRIS v. WATKINS.

(Supreme Court of Dakota. October 13, 1888.)

1. APPEAL FROM JUSTICE OF THE PEACE-DEFAULT JUdgment.

In an action before a justice, defendant appeared on the return-day of the summons, and obtained a continuance. On the day to which the case was continued, defendant's attorney appeared and filed an answer, but defendant did not appear, and judgment was given against him. Held not a judgment by default.

2. SAME PERFECTING APPEAL-FILING TRANSCRIPT-FAILURE OF CLERK TO INDORSE. Where the papers on an appeal from a justice are received by the clerk of the district court within the 15 days for filing allowed by the Justice's Code, Dak. § 96, but are not marked "Filed" by the clerk because of non-payment of his fees, the court obtains jurisdiction, and it is error to dismiss the appeal.

Appeal from district court, Spink county; L. K. CHURCH, Justice. Action by F. A. Harris against Eugene Watkins before a justice of the peace for damages to personal property. An appeal to the district court from a judgment in favor of plaintiff was dismissed, and defendant appealed to this court,

Norton D. Walling, for appellant. H. C. & T. J. Walsh, for respondent.

FRANCIS, J. September 17, 1886, respondent commenced an action in the court of a justice of the peace to recover the sum of $75 damages for property alleged to have been converted by the defendant. September 25, 1886, the case was set for hearing, but, upon motion of attorney for appellant, was continued to October 1, 1886. October 1, 1886, an answer was filed on behalf of the defendant (appellant) by his attorney, denying each and every allegation contained in the complaint of the plaintiff, (respondent,) but the appellant, (defendant,) being mistaken as to the hour set for the trial, did not himself arrive at the office of the justice until 1 o'clock P. M., and not until the case had been concluded, and the justice had rendered judgment against him in favor of the plaintiff. October 25, 1886, the attorney for the defendant (appellant) appeared before the justice, and moved to have said judgment set aside, and a new trial ordered, which motion was opposed by the attorneys of the plaintiff, (respondent,) and denied by the justice. October 30, 1886, an appeal to the district court was perfected by the filing of a bond and the payment of the fees of the justice for transcript: the notice of appeal having been served and filed prior thereto. November 11, 1886, 12 days after said appeal was perfected, the clerk of the district court, to which said appeal was taken, received the transcript and papers in said action, which were forwarded to him by the justice of the peace, but the said clerk of the district court failed to indorse thereon the evidence of the filing thereof, on the ground that his costs had not been paid. November 17, 1886, the plaintiff (respondent) served notice of motion to dismiss said appeal on the following grounds, namely: First, that "no appeal will lie from the judgment of the justice herein; the same having been rendered on default, and no motion to open the default having been made prior to the service of the notice of appeal." Second, that "the appeal papers have never been filed in the office of the clerk of the district court, and more than fifteen days have elapsed since the appeal was perfected." November 26, 1886, (prior to the day set for the hearing of said last-mentioned motion,) the costs of said clerk of the district court were paid, and he indorsed the appeal papers as filed. December 11, 1886, said motion to dismiss said appeal was argued before Hon. Louis K. CHURCH, the judge of said district court, and said appeal was dismissed, with $10 costs, and to this ruling and order of the court the defendant (appellant) duly entered his exception. December 15, 1886, notice of appeal to this court, and undertaking, were served on the attorneys of plaintiff, (respondent,) and upon the clerk of said district court, and January 5, 1887, were tiled in the office of said clerk. The following errors are assigned: First, "the court erred in holding that an appeal would not lie from the judgment rendered in the justice court; second, the court erred in holding that the failure of the justice to perform his duty would defeat appellant's rights; third, the court erred in dismissing the appeal."

From this record it is evident that the judgment rendered by the justice of the peace was not a judgment upon default. The defendant (appellant) appeared, by his attorney, before the justice of the peace, on the day first set for the hearing of the action, and answered the complaint of the plaintiff, and on