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Order affirmed.

BIEGERT v. VILLAGE OF MAYNARD. (Supreme Court of Minnesota. June 13,

1913.)

(Syllabus by the Court.) 1. BRIDGES ($ 20*)-CONSTRUCTION-PERFORMANCE OF CONTRACT-RECOVERY FOR RECONSTRUCTION.

Evidence considered, and held to sustain a verdict for defendant.

[Ed. Note.-For other cases, see Bridges, Cent. Dig. §§ 37-44, 46, 47; Dec. Dig. § 20.*] 2. NO PREJUDICIAL ERROR.

There was no prejudicial error in the rulings on the admission of evidence or in the charge.

Appeal from District Court, Chippewa County; G. E. Qvale, Judge.

Paul and Minneapolis, and to report only | fendants, including the Minnetonka line. If, the fares received outside those cities. In as suggested by the Attorney General, any other words, whether the total receipts by inequities or collusion arise to the prejudice them, including for inside and outside traffic, of the state, resulting from the method of constitutes, within the meaning of the law, determining the gross earnings of defendants, their gross earnings. It is the contention of the remedy by legislation is adequate for the state that all such receipts should be the correction of the same. In fact, we are reported, that they in fact constituted earn- impressed that defendant companies, and ings of defendants, and that the amount paid others similarly incorporated and operating therefrom by the Transit Company to the partly within and partly without municipalicity companies must be deemed compensa- ties, should be either commercial or street tion for the use by the defendants of the railways, and not be burdened with both tracks within the cities. In this contention characters. But this is a matter for the Legwe are unable to concur. We have no par- islature. ticular difficulty in sustaining the conclusion of the trial court that the agreement of the different companies for the apportionment of the revenue receipts by the Suburban Companies, whereby the fares received for the transportation of passengers outside the cities were paid over to those companies, and the fares received within the cities to city companies, was a legitimate and proper arrangement for the distribution of earnings thus accruing. The distribution was clearly equitable and fair, and in harmony with the legal rights of the parties, and undoubtedly what the law would have awarded in the absence of an express contract. By the arrangement each company received the income derived from its own line, and the amount so received necessarily represented the gross earnings of defendant companies for the years 1909 and 1910. In the case of State v. Suburban Railway Company (defendant in this case) 114 Minn. 70, 130 N. W. 71, it was held that within the city of Stillwater defendant was a street railway company subject to taxation on the ad valorem basis, but that between that city and the city of St. Paul it was an ordinary commercial railroad and subject to the gross earnings tax. While some force seems to have been given to the fact that defendant obtained from the city of Stillwater a franchise to operate its own line upon the city streets, that was not the controlling reason for the decision. That case must be taken as laying down the general proposition that roads of this character are commercial roads without, and street railways, where incorporated as such, within, the cities or villages in which they may operate street cars. any event, we think it sufficiently appears in the case at bar that defendant companies were lawfully operating their cars within St. Paul and Minneapolis under public grant, and under an arrangement for the distribution of earnings as heretofore mentioned, and under the rule of the Stillwater Case they would not be heard to assert the contrary. We therefore conclude that the trial court properly disposed of the case, and the judgment appealed from must be affirmed. What we have said on the subject of the various suburban lines applies, by the facts disclosed, to all such lines operated by de

In

Action by H. L. Biegert against the Village of Maynard. Verdict for defendant. From a denial of new trial, plaintiff appeals.

Affirmed.

A. E. Kief, of Montevideo, for appellant. Fosnes & Fosnes, of Montevideo, for respondent.

BUNN, J. Plaintiff was the successful bidder for the construction of six bridges to cross a county ditch on roads in the vicinity of defendant village. The ditch had been established and surveyed, but not actually dredged out. His written proposal to construct these bridges for a price of $2,900 was accepted in writing by the village council and the county commissioners. This contract provided for the building of the bridges according to specifications attached. The specifications as to the two bridges involved in this action were as follows:

"1 bridge with 24 ft. stringers, 20 ft. plank, with 28 ft. piers, 3 ft. wide at bottom, 12 ft. at top, and 12 ft. high."

"1 bridge, 24 foot stringers, 16 ft. plank, 24 ft. pier, 12 ft. high, and 3 ft. at bottom and 1% ft. top."

The contract sheds no light on the meaning of these specifications, and contains no additional information as to the width of the bridges, the angle at which they should cross the ditch in case the roads crossed it diagonally, or as to whether the piers for

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r indexes

sort of problem; but, unless we wholly misunderstand the situation, the question was for the jury, and the verdict is supported by the evidence.

It is conceded that both parties understood that each bridge was to have a 16-foot driveway. R. L. 1905, § 1195. In the case of the second bridge, the specifications call for 16foot planking; in the case of the first bridge,

the bridges should be constructed before or after the dredge had gone through the ditch. At the time the contract was entered into, or shortly thereafter, the line of the ditch es it was planned to cross the highway near the village was staked out; but the dredge was not expected there for some time, as it was still a mile away from the village. Plaintiff claimed that it was agreed, at or before the time of the execution of the writ- | 20-foot planking was specified. It is apparent ten contract, that he might build the piers before the dredge went through. He did so, with the consent of the members of the village council and the engineer who had charge. In constructing these piers, which were of concrete, and were to form the supports on either side on which the stringers were to rest, plaintiff did not erect them at right angles with the highways, when the highways crossed the line of the ditch diagonally, but followed the line of the ditch. It was seen by the engineer that under this method of placing the piers, if the 24-foot stringers were used, there would not be sufficient distance between the piers to enable the dredge to pass through. Plaintiff substituted 30-foot stringers. After the piers for these two bridges were constructed, the dredge came along and was unable to pass between the piers; the distance between the two piers for each bridge being less than the width of the dredge. It therefore became necessary to blow out one pier at each bridge to enable the dredge to perform its work.

After this plaintiff and defendant entered into a contract in which, after reciting that a dispute had arisen as to which party should pay the cost of rebuilding the piers so destroyed, it was agreed that plaintiff should immediately rebuild the piers and complete the two bridges, that defendant should pay plaintiff all money due him under the original contract, and that the question of who should pay the cost of rebuilding the piers should be left open.

Plaintiff thereupon rebuilt the two piers, completed the bridges, and brought this action to recover the value of the labor and material furnished in the reconstruction of the piers. The issues in the case were submitted to a jury, and a verdict for defendant returned. Plaintiff appeals from an order denying his motion for a new trial.

[1] The ultimate question in the court below was this: Whose fault was it that made necessary the reconstruction of the two piers? This depends upon whether plaintiff or defendant was to blame for their original construction in such a manner that the dredge could not pass between them. Plaintiff's first contention here is that the verdict finding that it was his fault has no support in the evidence, or at least so little support that we should reverse the order refusing a new trial. The case is somewhat puzzling to

that, to make a 16-foot driveway with 16foot planks, the planking would have to run at right angles with the stringers, and the piers would also have to be built at right angles with the road, instead of parallel with the line of the ditch. To make a 16-foot driveway with 20-foot planks, the planks would necessarily be laid at an angle across the stringers, and the piers would not be at right angles with the road. It is conceded that, at the angle the piers were placed by plaintiff, the 20-foot planks did not make a 16-foot driveway on this bridge, and that the piers for the other bridge were placed at such an angle that the 16-foot planks did not make a driveway 16 feet in width. It is clear, we think, though it may not be clearly expressed here, that the specifications, incomplete as they were, provided how the piers for both bridges should be placed, with reference to whether they should be at right angles with the road, on a line with the ditch, or at some intervening angle. This was done by specifying the length of the planking; the width of the driveway contemplated being admitted. It was testified by the engineer, who had charge of the construction for the village, that, had the piers been constructed at the angles provided by the specifications, the distance between the piers of both bridg es was sufficient, so that the dredge could have gone through. This is a proposition in mathematics, and it may be demonstrated that the conclusion is correct. It follows that plaintiff did not place the piers according to his contract, and that this was what made it necessary to blow out the two piers and afterwards reconstruct them. Unless defendant, through the members of its council, authorized the placing of the piers at the angles with the highways where plaintiff placed them, the conclusion would follow that plaintiff, and not defendant, should stand the loss.

The trial court instructed the jury that it was an established fact that neither one of the bridges was constructed at the angle contemplated by the parties when they entered into the contract, and submitted for their decision the question whether defendant authorized a change in the contract in this respect. We think that the instruction was correct, and that the jury was warranted in deciding the issue submitted to them in favor of defendant. There can be little doubt that plaintiff knew or should have

2. NEGLIGENCE (§ 122*)-CONTRIBUTORY NEG

LIGENCE-BURDEN OF PROOF.

The burden of proving contributory negligence is upon the defendant.

[Ed. Note. For other cases, see Negligence, Cent. Dig. 88 221-223, 229-234; Dec. Dig. § 122.*]

piers was necessary, and in deviating from | overcome as a matter of law, and that the questhe contract he took his chances. He might tion of contributory negligence was one for the have delayed building the piers until after jury, as well as the question as to whether there was negligence on the part of the defendant the ditch was dug; if he chose to do it be- which was the proximate cause of the injury. fore, it was his duty to see that his work was [Ed. Note.-For other cases, see Death, Cent. so done as to comply with the specifications Dig. § 141; Dec. Dig. § 103.*1 and to leave room between the piers for the dredge to pass. It is true that the engineer in charge of the ditch, after he found that plaintiff was building the piers before the dredge went through, and observed that the pier already constructed followed the line of the ditch, saw that the dredge could not go through if 24-foot stringers were used as provided by the specifications, and it is true that 30-foot stringers. were substituted by plaintiff, at the order of the engineer, and with the knowledge of one or more members of the council. But this does not show conclusively that defendant authorized the placing of the piers at the angles they were constructed.

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1. DEATH (§ 103*) PRESUMPTION AGAINST CONTRIBUTORY NEGLIGENCE REBUTTAL SUFFICIENCY.

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Where, in a suit for death by wrongful act, it is claimed that the deceased was run over by an engine of a railway company at a street crossing in an incorporated city, and a portion of the body of the deceased was found in a frog located from four to six feet from the planking in said crossing and within the limits of the highway, and the planking of said crossing did not extend, as required by section 4321, R. C. 1905, across the full length of the said highway, but only for about 16 feet, and there were no eyewitnesses to the accident, and some of the evidence showed that on the night in question a man could have been seen at a distance of 30 feet and the outlines of a box car at a distance of from 150 to 200 feet, and the engineer of the engine, which it is claimed occasioned the loss of life, testified that he had switched past the crossing a number of times during said night, but that when he crossed the same he rang his bell, and that there were lights both in front and at the rear of his said engine, but the evidence also showed that the night was very cold and stormy, that a strong wind was blowing with a velocity of 30 to 45 miles an hour, that the thermometer registered 18 degrees below zero, that dust and gravel and débris were flying, and the crossing was not lighted, and that, about an hour before the time at which the accident must have occurred, a hackman drove close to an engine on the track, which the evidence tended to show was the one which ran over the deceased, without seeing same or hearing any bell or signal sounded, and the next morning blood was found upon the tender of a switch engine of the defendant, held, that the presumption of ordinary care, which is based upon the instinct of self-preservation, was not

3. DEATH (8 58*)
SUICIDE.

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PRESUMPTION AGAINST

There is a legal presumption that one has not committed suicide.

[Ed. Note. For other cases, see Death, Cent. Dig. 88 75-78; Dec. Dig. § 58.*]

4. EVIDENCE (§ 60*) PRESUMPTION AS TO
CRIME.

has been committed, or
There is no legal presumption that a crime
that under circum-
stances such as those in the case at bar the de-
ceased was murdered and his body thrown upon
the track.

Cent. Dig. § 81; Dec. Dig. § 60.*]
[Ed. Note.-For other cases, see Evidence,

5. RAILROADS (§ 312*)-CROSSING ACCIDENT-
LOOKOUT.

It is the duty of a railway company to keep a proper lookout for travelers at a highway crossing which is within the limits of a city.

[Ed. Note. For other cases, see Railroads, Cent. Dig. 88 988-1001, 1003-1005; Dec. Dig. § 312.*]

6. RAILROADS (§ 347*)-CROSSING ACCIDENTADMISSION OF EVIDENCE.

In such a case evidence is admissible that an engineer, who is charged with having failed to ring his bell and to give proper crossing signals at a particular time, failed to do so at the same crossing and on the same night and within an hour of the alleged accident and while engaged in the same general switching transaction.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1124-1137; Dec. Dig. § 347.*] 7. DEATH (8 77*)—EVIDENCE OF DAMAGESMORTALITY TABLES.

In a suit brought under section 76S6, R. C. 1905, for death by wrongful act, the introduction of mortality tables is not necessary to a recovery of substantial damages, either to show the expectancy of the life of the deceased or of his beneficiaries. At the common law, standard tables, and in North Dakota the Carlisle tables, are proper and competent evidence for the purpose of aiding the jury, but the introduction is not absolutely necessary.

[Ed. Note. For other cases, see Death, Cent. Dig. § 96; Dec. Dig. § 77.*]

8. DEATH (8 99*)-DAMAGES

COVERY.

- EXCESSIVE RE

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For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

for excessiveness, unless it is so excessive as to indicate partiality, passion, or prejudice. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.*]

10. WORDS AND PHRASES-"STORMY."

age of 21, a girl of about the age of 24, and the deceased, of about the age of 26, lived with their parents. The two older daughters were married and lived elsewhere. Alfred Rober, the deceased, lived at home. He had lived there practically all of his life. The earnings that he derived from time to time from his own efforts, and which for some

The word "stormy" does not necessarily include either rain or snow. It includes a violent disturbance of the atmosphere attended by wind, rain, snow, hail, or thunder and light-time prior to his death were earned in work

ning.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 7, pp. 6678, 6679.] 11. DEATH (§ 58*)-ACTION-PRESUMPTION OF REASONABLE CARE.

In an action for a wrongful death to which there were no eyewitnesses, plaintiff is entitled to the benefit of the presumption that deceased, moved by the love of life and the ordinary instinct of self-preservation, was in the exercise of

care to that end.

[Ed. Note. For other cases, see Death, Cent. Dig. $$ 75-78; Dec. Dig. § 58.*] 12. RAILROADS (§ 350*)-CROSSING ACCIDENT -PROXIMATE CAUSE-SUFFICIENCY OF EVI

DENCE.

Where, in an action for wrongful death from being struck by a train at a highway crossing, the evidence showed the existence of a frog in the track at the highway, that portions of the body and clothing of deceased were found in the frog, and that a shoe was missing from one of his feet, the question whether the frog was the proximate cause of the accident was for the jury.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]

Appeal from District Court, Morton County; Nuchols, Judge.

ing with his father in the concrete business, and were estimated at about $4 a day, were "practically all used as a family purse." His earnings and those of his father were all turned "into the family purse," "and were not divided." The father was 53 years of age. The age of the mother is not given, but the fact that the oldest child was at least 28 years old would lead one to infer that she was at least 46 years of age. There is no direct testimony as to the joint earnings of the father and son, though it is shown that the father, during most of his lifetime, had been doing carpenter work and concrete work.

Deceased, on the night of December 31, 1909, and at about 11 o'clock, left his father's house to go to a dance at the opera house. The house was 22 blocks from the railroad crossing, where the body of the deceased was found at about 12 o'clock-between 12 and 2 o'clock. The night was stormy and cold. There was a wind of a velocity of from 30 to 40 miles an hour, though there was proba

Action by David J. Rober, as administra-bly no snow flying. The thermometer registor, etc., against the Northern Pacific Railway Company, a corporation. From a judgment for plaintiff, defendant appeals. firmed, and rehearing denied.

Af

This action is brought by David J. Rober, the father of, and as the administrator of the estate of, Alfred J. Rober, deceased, for the killing of the said Aifred J. Rober on the night of the 31st day of December, 1909, at Mandan, N. D. The defendant made the usual motion for a directed verdict and a

motion for a new trial. It, however, introduced no evidence in its behalf, and submitted no written instructions, and there were no exceptions to the charge. A verdict was rendered for $2,000 in favor of the plaintiff, and a judgment rendered thereon is here sought to be reversed.

The deceased was, at the time of his death, a young man of 26 years of age, of good health, and in the full possession of all of his faculties. There is no evidence whatever in the record that he was a drinking man, or that on the night in question he had used intoxicating liquors. He had been making his home with his father's family practically all of his life. There were seven children in all, three girls and four boys, of whom the oldest was 28 years of age and the youngest 15. The youngest child was a girl of 15, and the next in age was a boy of about 19. These two, with a boy of about the

tered 18 degrees below zero. There is some testimony that on the night in question one could tell a man 30 feet away and make out the outline of a box car 150 to 200 feet distant. One witness, however, testified that he drove within a few feet of an engine about an hour prior to the accident without seeing it or hearing the bell rung. The deceased approached the railway track, which ran east and west, from the north. There was a clear view of the yards 100 feet south of the crossing. The wind was blowing from There is evidence that a the northwest. switch engine of the company ran up and down the track and across the crossing practically all night, and that this engine was seen between 10 and 11 o'clock with no tail light on it; also that between 10 and 11 o'clock this engine almost ran into a witness; that it had then no tail light; and that the witness heard no gong or bell sounded. This, however, was objected to as being prior to the supposed time of the accident. Blood was found upon a switch engine in the yards of the company on the following morning, though the particular switch engine was not identified as being the one last mentioned. There is evidence, however, that another engine and crew were also operating in the yards besides the one last mentioned, though whether it crossed the particular crossing was not testified to. There were no gates at

the proof offered does not in any way justify the awarding of anything but nominal damages. (4) That the evidence in relation to the switch engine, which was seen by the hackman at about 10 o'clock and probably an hour prior to the accident, was improperly admitted.

[1, 2] On the first two objections it is argued that there is evidence which tends to show that a man could have been seen on the night in question at a distance of 30 feet, and that the outlines of a box car could have been seen from 150 to 200 feet. The proof, however, also shows that the night was very cold and stormy, and that a strong wind was blowing with a velocity of from 30 to 45 miles an hour, and that dust and gravel and débris were in the air; the thermometer registered 18 degrees below zero; the yards were not lighted. There is also evidence that at about 10 o'clock a hackman drove close to an engine upon the track, which the evidence strongly tends to show was the one which ran over the deceased, without even seeing the same or hearing any bell or signal sounded. There is also evidence that blood was found upon the wheels and tender of a switch engine of the defendant the next morning. On the other hand, the engineer testified that there were lights on both ends of his engine and that he sounded his bell whenever he passed the crossing. We do not believe that this evidence overcomes the presumption of ordinary care which is based upon the instinct of self-preservation. Kunkel et al. v. Minneapolis, St.

the crossing, and there was no flagman. proof of contributory negligence. (3) That There were no lights, except the switch lights. In the middle of the crossing, and between the rails, there were planks about 14 or 16 feet in length. There was, however, no sidewalk across the track. From 4 to 6 feet east of these planks was a frog with the V pointing to the west and towards the crossing, and which, though not on the planking, was within the roadway. At the east end of this frog, which covered 4 or 5 feet, were found clothes and parts of the body of the deceased at about 1 o'clock in the morning. Between the frog and the crossing was a piece of leg and a piece of backbone. The frog was full of clothes and parts of flesh. At the east end of the frog there was found a foot of the right leg with a shoe on it. Part of the body and the left leg was lying at the north side of the track between the frog and the planking. The left leg was west of the end of the plank. The other leg was east of the frog. Neither of the legs, however, was in the frog. The shoe belonging to the left foot was found removed from the foot, close to the main part of the body and right beside the frog, at the east end. Pieces of the body were scattered over a distance of about 100 feet west of the crossing. The leg on which the shoe was left was cut square off between the knee and the ankle. The defendant put no witnesses upon the stand, but the engineer of the switch engine mentioned was called by the plaintiff. He testified that he ran his engine across the crossing all that night, back and forth. He, however, testifies that he did not know that a man had been killed until about 1 o'clock in the morning, | P. & S. S. M. Ry. Co., 18 N. D. 367, 121 N. when he was coming back from supper. He said that he was told this fact by the engineer of the other switch engine at that time, who was evidently in the courtroom at the time of the trial but was not called by the defendant. He said that the other switch engine was in the vicinity that night, though he did not know that it crossed the crossing. He said that he left his engine about 12 o'clock. He said that he had lights on both ends of his engine and rang his bell at the crossing. He testified, however, that he never, at any time during the night, saw a man on or near the crossing, and never knew that any man was injured or killed until between 12.30 and 1 o'clock, when he was told of the fact by others, nor did he discover that there was any blood or flesh near the frog until afterwards.

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W. 830, and cases there cited; Moore on Facts, vol. 1, §§ 554, 555; Hanlon v. Milwaukee Ry. Co., 118 Wis. 210, 95 N. W. 100. It is true that this presumption does not overcome direct, probative evidence; but, as we view the case, there is nothing in the record which rises to the dignity of such.

The plaintiff's intestate was killed on the crossing of a public highway, and within the limits of the city. There is no real dispute upon this question. The mangled remains of the body and the clothes found in the frog in the highway are sufficient evidence of this.

[3] The presumption of the law is that a man has not committed suicide, and therefore that the deceased did not voluntarily throw himself upon the track. Soules v. Brotherhood of American Yeomen, 19 N. D. 23, 120 N. W. 760; Schraeder v. Modern Bro. of America, 90 Neb. 683, 134 N. W. 267; Walden v. Bankers' Life Assoc., 89 Neb. 546, 131 N. W. 962; Moore on Facts, vol. 1, § 651.

[4] So, too, there is no presumption that BRUCE, J. (after stating the facts as any one else committed a crime; that is to above). Appellant relies upon four propo- say, killed him and placed his body upon the sitions for a reversal of this judgment: (1) track. There is a presumption of due care That there was no proof of negligence on the on his part arising out of the instinct of part of the defendant. (2) That there is self-preservation. Kunkel et al. v. Soo Ry.

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