law, so as to justify this court in taking the determination of the fact from the jury. There is no evidence that at any time before the deceased reached the track the car or engine which occasioned the accident was within 200 feet of the crossing. The blood found upon the tender of the engine is at least some evidence that it was backed down upon the deceased. The evidence tends strongly to show that he stepped into the frog which was in the highway and from four to six feet east of the planking on the crossing. The jury were perfectly justified in inferring that when he reached the crossing he was for the first time aware of an engine approaching at a distance of 150 to 200 feet. Such a sight would naturally startle him, and it is by no means improbable that he stepped to the right, off the planking, and into the frog. On a dark and stormy night, with a wind blowing at from 30 to 40 miles an hour, and dust, gravel, and débris blowing, which some of the testimony shows, it is not by any means improbable that in crossing the track he should have stepped to the side of the planking which he had a right to do; it being the duty of the railway company to plank the crossing for its entire width. At any rate, we cannot say that it would have been contributory negligence for him to do so. If the approaching train was going at the rate of 20 miles per hour, and when first seen was 200 feet away, it would have reached him in less than 7 seconds. If it was 150 feet away, and going at the same rate, it would have reached him in less than 6 seconds. If it was going at the rate of 10 miles per hour, it would have reached him in less than 14 seconds and 11 seconds, respectively. If his foot was caught in the track, or he stumbled in any way, or hesitated in his confusion at first seeing the train, he might not have had time to escape the accident. At least the jury could so infer. Can this court, as a matter of law, say that the presumption of due care, which the instinct of self-preservation raises, is overcome by this evidence? In North Dakota, as we before stated, the burden of proving contributory negligence is upon the defendant, and not upon the plaintiff, and as we have before suggested, in nearly all of the cases cited by counsel, not only are the physical facts different, but there were eyewitnesses to the Occurrences. In the case of Klotz v. Winona & St. Peter Ry. Co., 68 Minn. 341, 71 N. W. 257, we find the following language: "It cannot be said that in all cases, as a matter of law, it is the duty of the traveler to stop and look and listen for an approaching train. The case at bar, we think, is one where the surroundings were of such a character that made the question one of fact rather than one of law. There was a rumbling noise of a city mill near by; the moving of the engine eastward from where the plaintiff was traveling, with its noise and blowing off of its whistle, which might have operated to throw the plaintiff off his guard. By reason of so much noise from different sources, and especially from the engine which he could see moving away from him, he might have been deceived and misled. This rule as to noise has been applied where there was the sound of falling water at a crossing (Richardson v. Railway, 45 N. Y. 847), also where the noise was caused by a wagon and by a steam sawmill and by another train. Leonard v. Railway, 42 N. Y. Super. Ct. 225. See, also, Hendrickson v. Railway Co., 49 Minn. 245, 41 N. W. 1044 [16 L. R. A. 261, 32 Am. St. Rep. 540]. Nor can it be said that the deceased was intentionally guilty of negligence or recklessness in his conduct. The moment he discovered the tender near him he made an effort to get out of its way, but was impeded by the wheelbarrow and the rope around his neck and attached to it, whereby he was jerked down by the tender and engine. The love of life is also too strong to permit us to indulge in any presumption that he acted recklessly, or that he did not do what a prudent man ordinarily would do to save his life. The railroad tracks were nearly parallel and not far apart, the engine passing over them only about three times a day; and he may have been led to believe that the engine was continuing its eastward course away from him. The position of the ringing bell as the engine approached the crossing may have tended to force very much of its sound away from him. All of these matters in connection with the omission of the defendant to have a footboard or other contrivance on the engine or tender to carry a lookout, the rate of speed of the engine, and its moving backward, all tend to rebut the charge of contributory negligence on the part of the deceased. A traveler approaching a railway crossing has a right to presume that in handling its cars the railroad company will act with proper care, and that the signals of approach will be seasonably given. It is the settled law of this state that contributory negligence is a matter of defense, and the plaintiff, in making out his case, need not prove the absence of it, and, where there is any controversy as to the fact and different conclusions might be drawn by fair-minded men, the question of contributory negligence is one for the jury, acting under proper instructions from the court." It is to be remembered that in the case at bar, though the witness Wordeman was questioned as to whether any men were placed on the footboard of the engine, his testimony was unsatisfactory and indefinite. There were men there at times, but at what times and when crossing the crossing was not testified to. It is quite clear, at any rate, that, if they had been on the footboard of an approaching engine when deceased was struck at the crossing, they would have seen him. The testimony of the witness | authorities, assume or entertain the hypotheWordeman, the engineer on the freight en- sis that the deceased crawled beneath the gine, is as follows: "This switch engine has cars. There is no evidence of this fact. It footboards. Two of them. One in front and is merely a hypothesis and guess of counsel, one in the rear. Q. Did you see any of the which is supported by no evidence and no switch crew standing on the footboard as presumptions. It is opposed to the presumpyou went across this crossing that night? A. tion of a natural regard for one's self-presI forget if there was anybody. Q. I asked ervation. you if at any time you saw anybody standing on the footboard? A. Yes. Q. When, that night, in point of time did you see anybody standing there? A. At all hours. Q. Then you saw somebody standing on that footboard at 10 o'clock and right along every minute? A. No, it is their business. Q. I don't ask you about their business. I want to know if you saw this switch crew standing on that footboard as you went west that night. A. At certain times I did." The Supreme Court of Michigan, in the case of Cooper v. Lake Shore Michigan Southern Ry. Co., 66 Mich. 261, 33 N. W. 306, 11 Am. St. Rep. 482, held that it was gross negligence to back a train without a brakeman at the rear and as a lookout across the main thoroughfare of a village, where there is no flagman at the crossing, even at a rate but little faster than a person walks. It is not necessarily a sufficient exercise of care on the part of a railway company, whose tracks cross a highway at a grade, to sound the whistle and ring the bell of its engines, but such company is bound to so manage its trains and to give such other warnings of their approach, or take such other reasonable precautions as not to cause unnecessary risk to persons on or about the crossing. Chicago & N. W. Ry. Co. v. Netolicky, 67 Fed. 665, 14 C. C. A. 615; Thompson v. N. Y. Cen. Ry. Co., 110 N. Y. 636, 17 N. E. 690. It is, as we have before said, to be remembered that in North Dakota contributory negligence is a matter of defense, and freedom from the same is not necessary to be alleged in the complaint or proved by the plaintiff. This fact is well worth remembering, and it distinguishes many of the cases. The case of Grant v. Philadelphia, etc., Ry. Co., 215 Pa. 265, 64 Atl. 463, which is cited in section 37 of Moore on Facts as tending to support the proposition that the jury cannot guess as to contributory negligence, and that, where it was equally probable that the deceased adopted a course of travel which was consistent with negligence as with due care, the court would not infer the forcase in which the burden of proving and alleging freedom from negligence was upon the plaintiff. The author of the work, in fact, recognizes this fact, and in his note he says: "Evidently, if the burden of contributory negligence had rested upon the defendant, the latter would have failed for the same reason." We cannot, under the mer, was a We hardly see, in the light of the decisions and of the record, how this court merits the charge made by the appellant in his petition for a rehearing that it has distorted the evidence, established erroneous rules of law, and destroyed the precedents of the past. We have not even established a new rule in North Dakota. The rule in this state was thoroughly explained, if not laid down, by Ex-Chief Justice Young in the case of Pyke v. Jamestown, 15 N. D. 157, 107 N. W. 359, when he said: "The question of negligence, whether it be of a defendant or the alleged contributory negligence of a plaintiff, is primarily and generally a question of fact for the jury. The question becomes one of law, authorizing its withdrawal from the jury, only when but one conclusion can be drawn from the undisputed facts. 'If the undisputed facts are of such a character that reasonable men might draw different conclusions or deductions therefrom, then the question of negligence must be submitted to the jury.'" This doctrine has been recently affirmed by this court. See Kunkel et al. v. Soo Ry. Co., 18 N. D. 367, 121 N. W. 830. It is abundantly borne out by the decisions of the American states. See, also, Allen v. Pa. Ry. Co. (Pa.) 12 Atl. 493; Ill. Cent. v. Norvicki, 148 Ill. 29, 35 N. E. 358; Richmond, etc., Ry. Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748, 37 L. Ed. 642; Dalton v. Chicago, Rock Island & Pacific Ry. Co., 104 Iowa, 26, 73 N. W. 349; Galvin v. Mayor, 112 N. Y. 223, 19 N. E. 675; Hemingway v. Ill. Central Ry. Co., 114 Fed. 843, 52 C. C. A. 477; Whaley v. Vidal, 27 S. D. 627, 132 N. W. 242; Railroad Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186; FredN.. W. 12; Soeder v. St. Louis, etc., Ry. Co., rickson v. Iowa Central Ry. Co. (Iowa) 135 100 Mo. 673, 13 S. W. 714, 18 Am. St. Rep. 724. We are still of the opinion that there was sufficient evidence of financial interest to sustain the verdict of the jury, and that no error was committed in the admission of testimony. See 13 Cyc. 376, and cases cited; Sieber v. G. N. Ry. Co., 76 Minn. 269, 79 N. W. 95. We, therefore, see no reason for reversing our former holding or for granting a rehearing. We have, however, after the filing of the petition, and influenced thereby, modified some of the statements made in the original opinion. The petition for a rehearing is denied. DONOVAN v. JORDAN. (Supreme Court of North Dakota. 1913. Rehearing Denied June 19, 1913.) (Syllabus by the Court.) May 24, ing for the dismissal where the action is not brought to trial or to final determination within five years from its commencement. Plaintiff has brought three actions against defendant upon three different causes of action, with complaints verified, respectively, September 21, 1901, October 9, 1901, and October 4, 1902, all of which were instituted by attorneys Gordon & Lamb, formerly of Lang 1. DISMISSAL AND NONSUIT (§ 60*)-GROUNDUNREASONABLE DELAY-CHANGE OF JUDGE. Opinions deciding three cases on appeal, as Nos. 2387-88 and 89. Plaintiff began these three actions, all of same title, on Sep-don, N. D., both of whom are since deceased. tember 21, 1901, October 9, 1901, and October Within the 30-day period answer was served; 4, 1902, respectively, and they were placed up- and note of issue was filed in the first two on the trial calendar in 1901 and 1902, respec- cases in October, 1901, and in the last tively. In November, 1902, plaintiff filed affidaAffidavits of prejudice vits of prejudice against the judge of that dis- in November, 1902. trict. No further action was taken until December 16, 1907, when defendant files motions to dismiss based upon section 6999, Rev. Codes 1905, for failure to prosecute to trial for over five years, which motions were heard by another judge there presiding, and denied, after which trial was had over defendant's exception and judgments were awarded in plaintiff's favor. On defendant's appeal it is held: (1) That the affidavit of prejudice was insufficient to exonerate plaintiff from the neglect presumed under the statute from his failure to cause the cases to be brought on for trial during the period of more than five years after the filing of such affidavits, and that the presumption that the resident judge did his duty and called in another judge to hear the cases, or attempted to do so, will not operate to excuse such longcontinued delay. And such delay is chargeable to plaintiff, in the absence of any showing of excuse on his part. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.*] 2. DISMISSAL AND NONSUIT (8 60*)-DISCRE TION. That the facts disclosed by the record and the affidavits supporting defendant's motions to dismiss being wholly uncontroverted were sufficient to entitle defendant to dismissals as of right under said statute. [Ed. Note. For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.*] 3. DISMISSAL AND NONSUIT (§ 60*)-DISCRE TION. That Rev. Codes 1905, § 6999, applies, there being no facts upon which discretion to deny defendant's motion can be based. Such denials were therefore an abuse of discretion reviewable on this appeal. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.*] Appeal from District Court, Cavalier County; Allen, Special Judge. Action by E. I. Donovan against Cornelius Jordan. From a judgment for plaintiff, defendant appeals. Reversed and dismissed. Joseph Cleary, of Langdon, for appellant. W. A. McIntyre and George M. Price, both of Langdon, for respondent. GOSS, J. The record facts decisive of all three of the above-entitled actions are practically identical. Judgment in each has been awarded against defendant after denial of a motion to dismiss made and based upon the provisions of section 6999, R. C. 1905, provid against the trial judge and bonds for expenses were filed in all three actions by the plaintiff on November 11, 1902. The causes remained untried, with no action taken by either party, plaintiff or defendant, and no steps taken whatever, except that other attorneys for plaintiff were substituted during the interim, until December 16, 1907, more than five years after said actions had been placed upon the calendar and more than that period after the filing of the affidavits of prejudice against the trial judge of that district. On December 16, 1907, defendant filed motions to dismiss, which were heard by the judge of another district there presiding. The motions were based upon the record and supporting affidavits of defendant and his attorney, to the effect that "the plaintiff has neglected and did neglect for a period of five years after the commencement of said action to bring the same to trial and to take proceedings for the final determination thereof," and that the delay has not been occasioned by or because of the defendant. No affidavits in rebuttal appear to have been served or filed. The presiding judge denied the motion for dismissal "for the reason that affidavits of prejudice were filed in each of said actions and the court will presume that the judge of the seventh judicial district did his duty or honestly attempted to do so, projudge to try said actions." To this order the curing or attempting to procure another defendant excepted, and on this appeal has assigned the same as error, contending that from the record, with the long delay unexcused and unexplained, under the statute (section 6999, Rev. Codes 1905), the action was deemed dismissed, and the court should have so ordered, instead of denying his motion and proceeding to trial. Plaintiff in reply urges that the affidavit of prejudice on file was a sufficient explanation of the delay if an excuse was necessary, and that the dismissal was discretionary with the court, and, the court having exercised its discretion favorably to plaintiff by its denial of defendant's motion, its action should not be reversed on appeal except for clearly an abuse of discretion not here shown. Such are the arguments of counsel upon this question. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes The Under these facts then, no excuse appears why the failure to bring this case on for trial within the period since its commencement exceeding five years is not neglect within the terms of the statute. There was, then, no ground for the denial of the motion made. [2, 3] But plaintiff avers that the denial was discretionary, and should not be reversed except for an abuse of discretion. Under the facts shown there was no discretion vested in the trial court, as there were no facts brought before it upon which it could use discretion. The only determination to be made was whether a case coming within the explicit terms of section 6999, and for which the statute was passed, should be governed by the statute. We know courts are loath to dismiss on motion without trial on the merits, but the statute has said that it shall be done when the case falls within its terms, and this is such a case. And no discretion is therefore left; the duty of the court being only to dismiss. To hold otherwise is to nullify, disregard, and set at naught the expressed will of the Legislature. If the statute does not here apply, it never applies, inasmuch as the facts are uncontroverted and no excuse is made for the delay; and the case stands fairly within our holding in Lambert v. Brown, supra, to be decided under a presumption that there was unreasonable neglect on the part of the plaintiff to bring this case on for final disposition. Lambert v. Brown was a stronger case in the plaintiff's behalf than this, inasmuch as there considerable effort was shown to at least keep the case alive, as a dismissal was, on plaintiff's motion, there once set aside during the five-year period. But here nothing appears to have been done for more than five and six years respectively in these actions. For similar holdings see Notman v. Petroleum Co. (Sup.) 128 N. Y. Supp. 20; Mannion v. Steffens (Sup.) 115 N. Y. Supp. 1087, affirmed on appeal in 135 App. Div. 921, 120 N. Y. Supp. 1134; Williams v. Jenkins, 76 Misc. Rep. 256, 134 N. Y. Supp. 890; Wilensky v. Casualty Co. (Sup.) 131 N. Y. Supp. 549; and Pociunas v. Refining Co., 74 Misc. Rep. 407, 132 N. Y. Supp. 395, reversing the same case in (Sup.) 130 N. Y. Supp. 162, and dismissing the action; Silverman v. Baruth, 42 App. Div. 21, 58 N. Y. Supp. 663. All of these cases are parallel to this in that they are reversals of orders denying motions to dismiss on identical grounds. [1] Since the trial court made the order | delay in the procuring of another judge to act in these cases on December 16, 1907, this after disqualification by filing of an affidavit court in Lambert v. Brown, 22 N. D. 107, 132 of prejudice against the resident judge. N. W. 781, has had occasion to construe and apply section 6999, R. C. 1905. It was there said that by operation of this statute "failure | for five years after the commencement of an action to bring the same to trial creates a presumption of unreasonable neglect on the part of the plaintiff, entitling defendants to a dismissal of the action, unless good cause for the delay be shown." And we there held that an order dismissing an action six years old was properly entered. The trial court, as is apparent from a portion of the order of dismissal above quoted, considered that the fact that an affidavit of prejudice against the presiding judge had been on file for more than five years was sufficient to exonerate plaintiff from neglect under a presumption indulged that the regular presiding judge had been unable to procure an outside judge to try the causes. It may be that it will be presumed that said judge, upon the filing of the affidavits of prejudice, complied with the statute and procured or attempted to procure another judge to hear the cases, but we will not presume that for a period of five years it was impossible to obtain an outside trial judge to attend for such purposes. Rather would we presume that an outside judge was obtained but that other reasons existed for the long delay. records of this court, of which we are asked by counsel for appellant to take judicial notice, disclose that at different times in 1903 and 1904 judges of other districts were at various times at Langdon, presiding in said court. This is disclosed from the record before us in Barry v. Traux, the opinion in which case is reported in 13 N. D. 131, 99 N. W. 769, 65 L. R. A. 762, 112 Am. St. Rep. 662, 3 Ann. Cas. 191. Under the record in this case and under such facts, we will not indulge in the presumption that the delay was occasioned by the judge of that district, in the absence of any showing that plaintiff was ever during said period ready for trial and endeavoring in good faith to obtain a final determination of these causes. Nor do we determine that sufficient excuse would have been shown for apparent neglect in prosecution had plaintiff brought upon the record the fact of an endeavor on his part to thus procure a trial of these causes. Notwithstanding the affidavit of prejudice any unreasonable delay is chargeable directly to plaintiff, as it has already been adjudicated in this state that litigants have a remedy by Neither the trial court nor this court has mandamus to enforce the procuring of an any alternative other than to apply the statoutside trial judge in case the disqualified ute to this case so plainly within its terms. resident judge, for any cause, neglects to As the motion should have been granted and procure one. See Gunn v. Lauder, 10 N. D. the order of dismissal entered, plaintiff hav389, 87 N. W. 999, wherein an original writing been entitled thereto by right, it follows of mandamus from the Supreme Court was that the judgment thereafter entered should missed, and it is so ordered. The same order will be entered in each of these three entitled actions. STACY FRUIT CO. v. MCCLELLAN. (Supreme Court of North Dakota. May 24, 1913.) (Syllabus by the Court.) 1. JUSTICES OF THE PEACE (§§ 73, 74, 183*)CHANGE OF VENUE-CONDITIONS PRECEDENT -APPEAL. This action was begun in justice court. Defendant in due season presented to the justice his affidavit of prejudice and demand for change of venue, together with one dollar, which were accepted. The affidavit and demand was not filed because defendant refused to pay an additional ten cents filing fee therefor, because of which the justice ignored the application, and, defendant not participating further, the justice entered a judgment against him from which he appealed to the district court, upon questions of both law and fact, and in his notice of appeal demanded a trial de novo in the district court. Judgment in the district court was thereafter rendered by default against defendant, who subsequently moved to vacate the judgment as void and to dismiss the action for want of jurisdiction, contending that the affidavit and motion for change of venue in justice court ousted that court of all jurisdiction of subjectmatter; and that on appeal the district court was not clothed with jurisdiction of the subjectmatter, the justice court having none. The district court granted the motion, to the extent of vacating its judgment, but retained the case for trial on the merits. Plaintiff, former judgment creditor, appeals. It is held: The payment of one dollar was a sufficient fee under the statute, and said payment, with the affidavit and motion for change of venue, rendered the justice powerless to proceed with the merits of the cause. For all purposes the affidavit and motion is to be considered in law as filed. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 236-242, 705-714; Dec. Dig. 88 73, 74, 183.*] 2. JUSTICES OF THE PEACE (§§ 73, 74*)-Ju RISDICTION-CHANGE OF VENUE. The filing of an affidavit of prejudice and motion for change of venue, while superseding and staying all further powers of that court, did not divest it of jurisdiction of subject-matter or of person, but jurisdiction remained in a court powerless to do other than the ministerial act of entering an order transferring the cause to another justice for trial. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 236-242; Dec. Dig. §§ 73, 74.*] 3. JUSTICES OF THE PEACE (§§ 147, 162*)-APPEAL-JURISDICTION. An appeal will lie from a judgment so rendered by a court in excess of its jurisdiction, and upon such an appeal perfected the district court acquires the full jurisdiction of the subject-matter possessed by the lower tribunal. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 493-501, 600, 603, 605; Dec. Dig. §§ 147, 162.*] 4. JUDGMENT REINSTATED. The order vacating the judgment having been entered without grounds, the same is ordered set aside, and the judgment so vacated reinstated as the final judgment in the case; it having been entered upon findings and after proof taken. Appeal from District Court, Benson County; Cowan, Judge. Action by the Stacy Fruit Company, a corporation, against George McClellan. From judgment for defendant, plaintiff appeals. Reversed. Niles & Koffel, of Bismarck, for appellant. Stuart & Comstock, of Minnewaukan, for respondent. GOSS, J. This action was begun in justice court to recover a money judgment in an amount within the jurisdiction of that court to determine. Service of summons upon defendant was had, who, on return day, appeared in person and gave the justice one dollar and an affidavit of prejudice and demand for change of venue, as required under sections 8375 and 8377, R. C. 1905, which the justice received but refused to file because an additional fee of ten cents therefor was not paid him. Defendant did not further participate in proceedings in justice court, which court thereafter ignored the attempt at obtaining a change of venue and entered up judgment against defendant, who subsequently appealed to the district court by a general appeal upon both law and fact and demanded in his notice of appeal a trial de novo in the district court. Defendant also, with his notice and undertaking on appeal, served a verified answer containing a statement that it was served because required by statute to confer jurisdiction upon appeal for any purposes, but attempting to reserve the right in district court to make thereunder a special appearance to except to the jurisdiction of that court. Thereafter the district court, on defendant's default, tried the cause, made findings and conclusions, and ordered judgment in favor of plaintiff, and on October 3, 1910, judgment for $76.98 was entered. September 8, 1911, on defendant's application after due notice, the district court, on motion to vacate and to dismiss for lack of jurisdiction of the subject-matter of the suit, set aside its judgment and granted a new trial and ordered that the case stand for trial and final disposition upon the regular December, 1911, calendar of the district court. The order does not show the grounds upon which it was entered. The motion for vacation of judgment thus set aside was based upon a want of jurisdiction of either court of the subject-matter of the action, and sought a dismissal. Instead, the court vacated the judgment but denied a dismissal, retaining the case for trial de novo. From such order the plaintiff, whose judgment against defendant was thus vacated, appeals, contending that the order vacating the judgment was not made upon valid grounds and that the judgment vacated should be reinstated. Subsequently, on The issues involved are decided by the de *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |