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most all of the statutes defining the offense. 24, 1905. June 26, 1905, the defendant servAs distinguished from the meaning attributed to 'maliciously,' as ordinarily employed in criminal statutes, as equivalent to wrongfully, intentionally, and without just cause or excuse, the word has been held in many statutes, directed against the unlawful destruction of property, to have a restricted meaning peculiar to such statutes, implying that the act to which it relates must have resulted from actual ill-will or revenge. This distinction first arose under the English statutes, but the statutes of the United States have been regarded as sufficiently like those of England to have been given the same construction in many cases." To the same effect see 19 Am. & Eng. Enc. of Law, 641, and cases cited. Also 2 Bish. Cr. Law, § 996, note 10; Nutt v. State, 19 Tex. 340; State v. Boies, 68 Kan. 167, 74 Pac. 630; Com. v. Williams, 110 Mass. 401; State v. Johnson, 7 Wyo. 512, 54 Pac. 502; Rose v. State, 19 Tex. App. 470; State v. Flynn, 28 Iowa, 26; Barlow v. State, 120 Ind. 56, 22 N. E. 88.

Applying the above rule of construction to the evidence in this case, we are required to hold that the state wholly failed to establish the charge contained in the information, and we therefore conclude that the judgment appealed from must be reversed, and a new trial ordered. All concur.

Dec. 2,

KASLOW v. CHAMBERLIN. (Supreme Court of North Dakota. 1907. On Rehearing, Sept. 12, 1908.) 1. NEW TRIAL-MOTION-HEARING - ABSENCE OF JUDGE.

A motion for a new trial was duly noticed for hearing on a day and hour named at chambers of the judge of the district court of the proper district. On the day set for the motion the judge was not present, and no proceedings were had. Held that, in the absence of an order continuing the hearing or a written stipulation to that effect, the motion went down, and could not again be taken up without new notice or formal consent of the party on whom it was served.

2. SAME-NOTICE.

Courts cannot take jurisdiction to hear a motion for a new trial on a verbal agreement that it may do so, claimed by one party, and denied by the other.

(Syllabus by the Court.)

Appeal from District Court, Ramsey County; J. F. Cowan, Judge.

Action by Louis Kaslow against E. J. Chamberlin. From an order setting aside a judgment and granting defendant a new trial, plaintiff appeals. Reversed.

Anderson & Traynor, for appellant. Burke & Middaugh, for respondent.

SPALDING, J. On the 23d day of June, 1905, judgment was entered on a verdict in favor of the plaintiff and appellant and against the defendant and respondent in the district court of Ramsey county. Notice of the entry of this judgment was served June 117 N.W.-34

ed notice of intention to move for a new trial. Statement of the case was settled by the judge on stipulation of attorneys on the 23d day of October, 1905, and on the 11th day of October, 1905, the defendant served notice on plaintiff's attorneys that on the 19th day of October, 1905, he would move the court for an order granting a new trial. The hour set in the notice for the making of the application to the court was 10 o'clock in the forenoon of said day, and the notice did not contain the usual phrase, "or as soon thereafter as counsel can be heard." On the day set for the making of the motion for a new trial, the judge of the court was not present at the time and place set, so the motion was not made or presented to the court. No further proceedings were had in the matter until June 28, 1906, when execution was issued on the judgment, and returned on the 26th of August, 1906, unsatisfied. October 29, 1906, the plaintiff filed written objections to the hearing of a motion for a new trial, and, in support of and in opposition to said objections, affidavits were filed by the respective parties. On the 20th of November, 1906, the court made an order granting a new trial, which was subsequently modified and amended on the 22d of December, 1906. Such order vacated, annulled, and set aside the judgment. From this order the plaintiff appeals. A discussion of two questions is all that is necessary to determine this appeal. They are: What was the effect of the failure to bring on the motion at the time set? Was a verbal stipulation, if made as contended by defendant, sufficient on which to base a motion for a new trial, the plaintiff denying such stipulation?

1. It appears that the original motion for a new trial was returnable on a day and hour named. The day was not a day of a regular term of court, nor a day designated by the rules of the court for hearing motions, but was at chambers outside any term of court. We are of the opinion that the motion in the form in which it was noticed was abortive, and went down when not heard on the day for which it was noticed. The statute requires eight days' notice of motion for a new trial, and that the notice shall specify the time and place of hearing. It also requires it to be heard at the earliest practicable period after the service of notice of intention. Rev. Codes 1905, § 7067. The authorities are few on this question, but we find none on a notice in form like the one under consideration, which holds that the motion stands over to a later day in the absence of an order by the court or stipulation of counsel. Ireland v. Spalding, 11 Mich. 455; Cheetham v. Howell, 6 Yerg. (Tenn.) 311; Gwin v. Vanzant, 7 Yerg. (Tenn.) 143; Vernovy v. Tanney, 3 How. Prac. (N. Y.) 359; Rogers v. Toole, 11 Paige (N. Y.) 212. There are cases holding that when an order

is returnable at a fixed time or "as soon thereafter as counsel can be heard," or on a motion day or on the first day of a term of court, and is not heard on the day named, it goes over until the next day or the next motion day or for a reasonable time. Platt v. Robinson, 10 Wis. 128; Stephens v. Kaga, 142 Ind. 523, 41 N. E. 930; Allen v. Beekman, 42 Wis. 185. But it has also been held that, when a motion is not heard on the day named in the notice and goes over, it is error to act upon it, in the absence of the adverse party without further notice. Fischer v. Hanna, 8 Colo. App. 471, 47 Pac. 303. The object of requiring notice is to inform the opposite party of the time and place of the hearing, and enable him to prepare and be in attendance and present his reasons why it should not be granted. The motion is not in court until either filed or presented orally to the judge. It can hardly be expected that the opposite party should remain in attendance on the court constantly after the day set in the notice for the hearing, and until the moving party sees fit to present it. To require this would be to do away with the purpose and object of the notice, and would not be in harmony with the purpose of the practice act. If, however, it is contended that the motion might be heard without further notice within a reasonable time, it can scarcely be held that one year is a reasonable time.

2. Affidavits were used on the part of the respondent to show a verbal stipulation that no advantage would be taken by the appellant of the absence of the judge on the day set for the hearing of the notice, and that it might be presented to the judge by respondent in the absence of the appellant and his counsel, and considered without briefs or argument. Appellant admits that he agreed not to take advantage of the absence of the judge if it was brought on for hearing within a reasonable time, but denies that he agreed that it might be submitted without briefs or argument. It appears that there was a misunderstanding between counsel. This court cannot undertake to settle misunderstandings of a verbal agreement. The statute and the rules of the court contain provisions intended to protect parties against just such misunderstandings. Rev. Codes 1905, § 502, provides that an attorney and counselor has power "(2) to bind his clients to any agreement in respect to any proceeding within the scope of his proper duties and powers; but no evidence of any such agreement is receivable, except the statement of the attorney himself, his written agreement signed and filed with the clerk, or an entry thereof upon the records of the court." Rule 21 of the district court provides that "no private agreement or consent between parties or their attorneys in respect to the proceedings in a cause shall be binding unless the same shall have been reduced to the form of an order of consent and entered, or

unless the evidence thereof shall be in writ ing, subscribed by the party against whom the same shall be alleged or by his attorney or counsel, where one shall have appeared for him in the action." That the statute and rule quoted are intended to apply to just such cases cannot be doubted. In construing section 467, Comp. Laws (Rev. Codes Civ. Proc. 1903, § 507), the Supreme Court of South Dakota in Chamberlain v. Hedger, 10 S. D. 290, 73 N. W. 75, said, in speaking of verbal stipulations shown by affidavit: "But as they were not reduced to writing, nor entered upon the records of the court, they are not binding on respondents, and cannot be considered by this court." In McLaughlin v. Clausen, 116 Cal. 487, 48 Pac. 487, the Supreme Court of that state says: "If a party against whom a verbal stipulation is invoked denies that such a stipulation was made, the court will not hear the parties for the purpose of settling the dispute." The points in dispute in the case at bar are vital, and appellant denies that the verbal stipulation covered them. The court had no power to order a new trial of its own motion one year after verdict and entry of judgment. This is established in Flugel v. Henschel, 6 N. D. 205, 69 N. W. 195. It is possible that the judgment in the case at bar is excessive, but we are precluded by the record from examining this question. Much as we might be disposed to relieve respondent from it. as we view the law, we cannot do so.

Respondent claims that the court should not permit a party to be misled, deceived, or defrauded by means of an oral stipulation, and submits authorities in support of this contention. We think his authorities are not in point. In the case at bar it is not conceded that the stipulation covered the points in issue, and the record discloses no fraud on either side. It is clear that the district judge exceeded his legal powers when he considered and determined the motion for a new trial on the strength of a verbal stipulation claimed by respondent and denied by appellant.

Other points are discussed in the briefs, but they become immaterial on our view of the case.

The order granting a new trial is reversed. All concur.

On Reargument.

A rehearing was granted in this case, and additional briefs were filed and argued. After careful consideration of all the points urged, we see no reason for any but verbal changes in the opinion on file.

The respondent contends that it was verbally stipulated that no advantage of the absence of the judge would be taken, and that the motion might be submitted without briefs or argument. The appellant insists that it was to be presented to the court within a reasonable time, and that no agreement or understanding was had as to briefs or

argument. It therefore appears that the contentions of the parties are in conflict as to the time and manner of the proposed renewal of the motion. We see no way to relieve the respondent from this misunderstanding. If respondent's contention is correct, appellant was entitled to no further notice whatever. If appellant is not mistaken, even if the motion was presented within a reasonable time, he was entitled to some kind of notice so he might appear and present his objections.

Respondent insists that appellant fails to deny making the stipulation as understood by him, because in one of his affidavits his attorney alleges that no agreement was ever entered into in the presence of the court. We understand this to be an allegation intended to be independent of and in addition to the others, and used to foreclose any question as to a verbal stipulation being valid, as it might be if made in the presence of the court. This does not present a question as to the enforcement of a verbal stipulation, the terms of which are agreed upon by the parties, but one of determining or refusing to determine what was agreed upon verbally, when the parties disagree as to this.

We unanimously conclude that the former opinion must be adhered to. All concur.

PENDROY v. GREAT NORTHERN RY. CO. (Supreme Court of North Dakota. April 22, 1908. Rehearing Denied Sept. 12, 1908.)

1. RAILROADS-CROSSING ACCIDENT - INJURY AUTOMOBILE CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

TO

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Action to recover damages for injury done to plaintiff's automobile by a collision with defendant's train at a public crossing. Plaintiff's daughter was driving the automobile, and the plaintiff and others were riding therein at the time of the accident. The proof shows that at the time of the accident and for some time prior thereto defendant's train crew was engaged in switching in its yards at the city of Towner where the accident occurred, but that plaintiff and his daughter, although they had been pleasure riding about the city for some time, did not know that such switching was being done. In approaching such crossing the view of the occupants of the car was obstructed by buildings and other structures. Plaintiff and his daughter testified that in approaching such crossing they looked and listened for trains, but heard none. Just prior to reaching the crossing, the gear of the automobile was changed from high to low speed, and the noise which it made was about the same as that of an ordinary lumber wagon going at the same speed which was about five miles per hour. The train which collided with the automobile was being backed over this crossing in a westerly direction, the first car and the one which came in contact with the automobile being a flat car loaded with iron. Held, that the question of the contributory negligence of plaintiff and his daughter was properly submitted to the jury.

Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1166-1189.]

2. SAME.

A person in passing over a public railway crossing is bound to use care commensurate with the known and reasonably apprehended danger; but it is only in exceptional cases that a trial court is justified in taking from the jury the question of the exercise of such care. Under the evidence, it cannot be said as a matter of law that plaintiff and his daughter were guilty of contributory negligence in not stopping the automobile before making such crossing.

Certain instructions as to the meaning of the terms "proximate cause" and "contributory negligence" examined, and held correct.

[Ed. Note. For cases in point, see Cent. Dig vol. 41, Railroads, §§ 1169–1176.

For other definitions, see Words and Phrases, vol. 2, pp. 1540-1547; vol. 8, p. 7617; vol. 6, pp. 5758-5769; vol. 8, p. 7771.]

3. APPEAL AND ERROR-INSTRUCTIONS-PREJ UDICE.

***

The trial court charged the jury that "the act or omission must contribute, in order to be contributory negligence, to the happening of the act or event causing the injury, and, if the act or omission merely increases or adds to the extent of the loss or the injury, it will not have that effect." This instruction had no application to the facts in the case, but its giving is held not prejudicial error.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4220.]

4. RAILROADS-CROSSING ACCIDENT-INSTRUC

TIONS.

Certain requests for instructions by defendant were denied, and properly so, as their giving in effect would have amounted to a directed verdict.

5. APPEAL AND ERROR-ASSIGNMENTS OF ERBOR-WAIVER.

Certain assignments of error predicated upon rulings of the trial court in the admission and rejection of testimony are deemed abandoned for the reason that they are not discussed or treated in the brief in accordance with rule 14 (91 N. W. viii) of this court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4256-4261.] 6. WITNESSES-FEES.

In its order retaxing the costs, the trial court allowed certain witnesses the sum of $10 per day for attendance. This was erroneous, and the judgment is modified accordingly by reducing such allowance to the sum of $2 per day. [Ed. Note. For cases in point, see Cent. Dig. vol. 50, Witnesses, § 56.]

(Syllabus by the Court.)

Appeal from District Court, McHenry County; Goss, Judge.

Action by L. B. Pendroy against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Arthur Le Sueur and Murphy & Duggan, for appellant. O'Connell & Donnelly, Palda & Burke, and Bosard & Ryerson, for respondent.

FISK, J. This is an appeal from an order of the district court of McHenry county denying a motion made in the alternative for judgment notwithstanding the verdict, or for a new trial, and also from the judgment entered pursuant to the verdict of a jury.

Plaintiff's cause of action is based upon the alleged negligence of the defendant railway company in backing one of its trains

of cars against plaintiff's automobile at a public crossing in the city of Towner. The question of defendant's negligence and of plaintiff's contributory negligence and the extent of plaintiff's damages were submitted to a jury, and a verdict returned in plaintiff's favor for the sum of $350. In addition to a general verdict, the jury returned answers to 12 interrogatories, as follows:

"(1) Was the automobile in question fully stopped momentarily before the same was run upon the passing track where the collision occurred? A. No.

"(2) Was the engine whistle blown a short time before the collision, and while the engine was approaching on the same track upon which the collision occurred? A. No.

"(3) Was the engine bell rung before the collision, while the engine was approaching on the track upon which the collision occurred? A. No.

"(4) Was the brakeman or any employé of the defendant company on the box car or on the flat car in question at the time or immediately before the collision between the train and automobile? A. No.

"(5) At how many miles per hour was the train approaching the crossing in question when the flat car collided with the automobile? A. About 10 miles per hour.

"(6) Were the air brakes applied before or after the collision with the automobile? A. After.

"(7) Was the engine reversed before or after the collision? A. After.

"(S) Would an ordinary reasonable, prudent man, familiar with the operation of an automobile, have attempted to cross the said railway track with obstructions to the view as were present at that time at the time plaintiff and Mattie Pendroy crossed them in said automobile without stopping the automobile to examine for any impending danger from passing trains? A. Yes.

"(9) Was the plaintiff or Mattie Pendroy, either or both, guilty of any negligence whatever in the operating of the automobile, or negligent in any degree in operating the automobile upon the Great Northern Railway passing track, just before or at the time of the collision of the train and automobile? A. No.

"(10) Were the defendant's employés guilty of any negligence in the operation of the train in question at the time of this collision or immediately before the collision between the train and automobile? A. Yes.

"(11) Did the engineer or other employés of the defendant company do anything to cause injury to others which an ordinary prudent and reasonable man would not have done doing the same work, or omit to do anything to prevent injury to others in operating the said train at the time of the collision in question, or shortly before and while approaching the place of collision with the automobile on the passing track, that ordinary

prudent and reasonable men, doing the same work, would have done? A. Yes.

"(12) If you answer question No. 11 in the affirmative, state fully of what such acts or omissions referred to in the said question consisted. A. Because they did not blow the whistle; because they did not ring the bell; because the air brakes were not applied at the proper time; because the reverse lever was not applied at the proper time; the brakeman was not on the flat car."

Thereafter defendant made a motion, as before stated, for judgment notwithstanding the verdict or for a new trial, which motion was denied, and judgment entered pursuant to the verdict.

Appellant has set forth 38 assignments of error relating to rulings in the admission and rejection of testimony, alleged errors in instructions to the jury and refusals to instruct, also to the ruling of the court in denying motions for nonsuit and for judgment • notwithstanding the verdict, or for a new trial; also, the order of the court in retaxing and allowing certain costs. Such assignments as have been argued in appellant's brief will be noticed in the order presented. The assignments not argued will be deemed abandoned. Before noticing these assignments, a brief statement of the facts may be useful. On July 7, 1906, the plaintiff, with two of his daughters and other persons, was riding about the city of Towner in plaintiff's automobile, and while in the act of attempting to cross defendant's railroad tracks at the intersection of said tracks with Main street, in said city, said vehicle was struck by defendant's train, consisting of two cars and an engine, which were backing over such crossing from the east. Plaintiff's daughter, aged about 18 years, was driving the automobile, and plaintiff was riding on the rear seat. The accident happened about 8 o'clock in the evening. The testimony tended to show that in approaching the crossing from the south the automobile was being driven at a speed of five or six miles per hour, and, when it reached a point within a few feet from the south track, the speed was changed to what is known as the "low gear," which is a speed of less than five miles per hour. It was shown that the noise from the automobile as it approached the railroad tracks was about equal in volume to the noise made by an ordinary lumber wagon under the same conditions, and that by chang. ing from the high to the low gear the noise was increased. On account of the grade crossing, it was necessary to change the engine to low gear. At the east of Main street, and on the south side of defendant's right of way, and along its south track, there were numerous obstructions to the view, consisting of elevators, elévator sheds, engine house, stockyards, etc. These structures and objects were upon the railroad station grounds. There were also other structures

just south of said right of way and east of Main street, consisting of lumber yards and buildings, all of which structures and objects to a large extent obstructed the view to the persons in said automobile as they approached said crossing just prior to the accident. There were four tracks crossing Main street, designated as the "industry" track, a "side" track, "passing" track, and "main" track. The collision occurred on the passing track, being the third track from the south. It is 131⁄2 feet from the center of the most southerly track to the center of the next track to the north, and from the latter point to the center of the track where the accident occurred is 14 feet. Certain freight cars were standing on the southerly track and on the easterly portion of Main street, and extending continuously at a distance of about 500 feet to the east. The car which stood on the easterly side of Main street in no manner obstructed traffic over the crossing. Flat cars approaching such crossing from the east were entirely hidden from view. Upon the evening in question, and for about an hour just prior to the accident, one of defendant's train crews was engaged in switching cars in the yards, and at the time of the accident defendant's engine was engaged in backing a couple of cars westerly over the crossing, the most westerly car being a flat car loaded with iron, and the other a box car. Numerous persons in the vicinity of the crossing heard the noise caused by the switching of the cars aforesaid. The testimony was conflicting as to the speed the train was being backed at the time of the accident, but 12 miles per hour was the probable speed. Both the plaintiff and his two daughters testified that, as they approached the railroad, they looked and listened for trains, but neither saw nor heard any. Plaintiff testified that it was impossible to see the approaching train until they had passed over the south track. As the automobile was passing down Main street, towards the tracks just prior to the accident, certain spectators who heard the approaching train endeavored to attract the attention of those in the car, but were unsuccessful. Plaintiff and the other occupants of the automobile had been riding around town for some time prior to the accident, and had crossed the defendant's tracks at said place, but the plaintiff's daughter Mattie testified that she did not know that defendant's train crew was switching cars in defendant's yard prior to the accident.

As stated by appellant's counsel, "the important question involved upon this appeal is whether or not plaintiff is barred from recovery because of contributory negligence." The question of the defendant's negligence as settled by the verdict of the jury is not controverted.

It is strenuously insisted by appellant's counsel that, under the evidence, the driver of the automobile, as well as the plaintiff

himself, was as a matter of law guilty of negligence which bars his recovery. They contend that, on account of the obstructions to the view of the occupants of the automobile, it was incumbent upon plaintiff and his daughter to stop and listen for trains before attempting to make the crossing, and counsel cite and rely upon, as controlling in their favor, the case of West v. N. P. Ry. Co., 13 N. D. 221, 100 N. W. 254. The facts in that case are clearly differentiated from the facts in the case at bar. In that case it was held as a matter of law that plaintiff's servant, who was the driver of the team which was killed, was guilty of contributory negligence in attempting to cross defendant's tracks ahead of the train which he knew was coming, and must necessarily have been very close to the crossing at the time of the accident. In narrating the facts it was there said: "Frank Hayes, the driver of the team, * was familiar with the crossing on Lamborn avenue and the conditions above described. He

saw a train approaching on the main track about 1 miles north. He went into the house, stopped there not over a minute, came out to the street where the team was standing, turned it around, and started it east towards the track. He drove the team on a trot clear down to and onto the track. When he crossed the west side of Chicago avenue, he looked north, but did not see the train. He knew when he could not see it that it was very close to the crossing; knew it had not yet crossed; knew it was approaching, but thought from where he had first seen the train he had time to get over the crossing, and so did not slacken the horses' speed at all until they struck the track. As he was driving he looked and listened for the train. The wagon he was driving was an ordinary lumber wagon. * ** It is plain that Hayes was guilty of gross negligence, and that his negligence was the direct cause of the accident, and that the negligence of the appellant's trainmen in the particulars mentioned could furnish no excuse or justification for the reckless act of Hayes in attempting to cross in front of the approaching train. From the time Hayes crossed Chicago avenue until he reached the track, he knew all view of the train would be obstructed, and that he could not gauge its exact distance from the sense of sight, but must rely upon the sense of hearing alone. When 127 feet from the crossing, with his mind and attention fixed upon the fact that the train was approaching; with ocular proof that it had traveled from a point 11⁄2 miles north to a point less than 1,380 feet from the crossing since he had first seen it less than three minutes before, and if the rate of speed was maintained it would be on the street in less than one minute; with knowledge that he could not see the train again until it emerged from behind the buildings and appeared at the crossing

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