Bennett v. Northern Pacific Ry. Co.

Corliss, J. This case has been tried three times in the District Court. This is its third appearance in this court. The opinions on the two former appeals are reported in 2 N. D. 112, 49 N. W. 408, and 3 N. D. 91, 54 N. W. 314. We'are loath to send the case back for a new trial, but we find no escape from the conclusion that the court erred in its charge. Twice in the course óf his charge the learned judge instructed the jury that if 'the plaintiff could not, after careful examination, discover any defect in the coupling apparatus, the defendant was liable. The jury were by this language told that the inability of the plaintiff to discover the defect after careful examination established the negligence of the defendant. It is obvious that the defendant’s negligence depended upon no such fact. This fact merely exonerated the plaintiff from the charge of contributory negligence. Defendant’s negligence must be determined from other considerations. We are unable to discover, from a careful study of the whole charge, that this error was neutralized by other portions of the court’s instructions. Nor are we able to hold that defendant’s negligence was established as a matter of law. It was a question of fact for the jury. So far as we know, they have never passed upon it. The court informed them that they must find defendant negligent if plaintiff was not himself careless. This verdict may rest upon a mere finding by the jury that plaintiff was not negligent. The judgment is reversed, and a new trial ordered. All concur.