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Instructions attached to certificate: "$385, deposited by Thomas Reed, to be paid over on presentation of a duly-executed satisfaction of the mortgage described in the annexed printed notice, from John B. Trevor, mortgagee. Flagg afterwards gave the bank a satisfaction piece purporting to be executed by John B. Trevor, and apparently answering all the requirements of the contract indorsed on the certificate of deposit, upon receiving which the bank paid him the money. The court instructed the jury to find for defendant. Plaintiff appeals.

Bailey & Davis, for appellant. H. H. Keith, for respondent.

FRANCIS, J., (after stating the facts.) The contention of counsel for the appellant is summed up in their insistment that "the court erred in sustaining the objection to the question, Since then has Mrs. Knapp paid the mortgage again?' and in excluding testimony upon that subject;" that "the evidence upon material facts was contradictory, and should have been submitted to the jury;" and that "the court erred in withdrawing the case from the consideration of the jury, and directing them to return a verdict for the defendant;" and "in rendering judgment on said verdict for the defendant." Their contention falls, on being brought face to face with the record. From an inspection of the record,-which, by stipulation of counsel and allowance of the court, contains, as part of the bill of exceptions, "a fair and correct statement of all the evidence introduced" at the trial, we are of the opinion that whatever right of action the plaintiff (appellant) might be permitted to maintain in the nature of assumpsit, or for negligence of the defendant bank as bailee, the said plaintiff, in the trial of this action against said defendant bank in the district court, failed to prove the cause of action stated in her complaint, and did not make against said defendant bank a prima facie case of conversion of either the money deposited with it or the mortgage satisfaction piece.

A

Counsel for appellant urge that "the testimony offered by the plaintiff to show that she has since been compelled to pay the money (embodied in said question: Since then has Mrs. Knapp paid the mortgage again?') was admissible upon the question of damages for the conversion of the satisfaction." complete answer to this is found in the fact that the complaint neither alleges the conversion of the satisfaction piece, nor claims damages for such conversion; and, we may add, the rejection of this question worked no injury to the plaintiff, as she failed (as already observed) to make even a prima facie case of conversion of the satisfaction piece or of the money, necessary to be made out in order to render the question of damage or the measure of damage material. As to the admissibility of the said question, ruled out in the district court, had the issue and the evidence made a case of conversion, either of the money or of the satisfaction piece, or as to the damage or the measure of damage, in that event no decision is essential, and this court is therefore silent with respect thereto.

As the case stood when the lower court directed a verdict for the defendant, there was no conflict of testimony on material points. The testimony offered on behalf of the plaintiff, (appellant,) not contradicted, but corroborated and strengthened, by that presented for the defendant, (respondent,) shows that the defendant received the money and paid it out upon a satisfaction piece in apparent accord with the instructions given when the money was deposited. Counsel for appellant press the point that there was a conflict in the testimony respecting the demand for the money and for the satisfaction piece, and the refusal of the defendant to deliver either, and that this should have been submitted to the jury. Such conflict, however, would not render necessary the submission of the case to the jury, unless there was at least a prima facie case of conversion to go to the jury, and in which they could determine such conflict; and, as we have seen, no such case existed in the district court when the verdict for defendant was directed. This reasoning will apply, with equal

force, to the other points upon which it is claimed for the appellant there was a contradiction or conflict in the testimony.

It is also asserted, in support of this appeal, that "there was evidence tending to show that the satisfaction was a forgery," and this should have been submitted to the jury. It is not necessary to discuss the weight or effect of the proof that the satisfaction piece, received by the bank, (defendant,) and on receipt of which it paid out the money, was a forgery, as there was no testimony in the case on that point proper to be submitted to the jury, or from which they could have found as a fact that the said satisfaction piece was a false one; nor was the forgery of the satisfaction piece brought in issue, or alleged, either in the complaint or the answer. An examination of the case shows that all the testimony relating to the forgery of the satisfaction piece was as follows, namely: That of Thomas Reed, for plaintiff, who, referring to C. L. Norton, cashier of the defendant bank, testified: "He said it was a forgery, and it was so nicely executed one couldn't hardly tell it from the original;" and the further testimony of said Reed, "I did not know anything about whether it was a forgery or not, only as they told me. And the statements in the letter of H. H. Keith, (Exhibit B for plaintiff:) "I called at the bank, and found a satisfaction piece there purporting to have been executed by Mr. Trevor, and found it was a forgery." "I notified him (the cashier) not to deliver satisfaction to any one, as it was a forgery." "The forged satisfaction will be held in the custody of the law, to await the action of the grand jury." And the testimony of said C. L. Norton, when called in behalf of defendant: "I did not state to Mr. Reed that it was a very good forgery;" and, on cross-examination: "I never took Mr. Reed into the bank, and showed him what I claimed to be the real signature of Mr. Trevor. I never showed him anything of the kind. I do not know that I ever saw Mr. Trevor's signature." It is evident that, even had the question of the forgery of the satisfaction piece been at issue in the case, this testimony alone would not have been sufficient to make a prima facie case on the point of said forgery, nor would it have presented a conflict or contradiction of material testimony to be left to the jury. The falseness of an instrument cannot be shown by testimony of this class or extent.

The rule governing courts in directing the verdict of a jury, after the mutations incident to most rules of practice, has come to be well established in the modern development of jurisprudence. Noting the existence of cases "which go a long way to hold that, if there is the slightest tendency in any of the evidence to support plaintiff's case, it must be submitted to the jury, the court, in the case of Improvement Co. v. Munson, 14 Wall. 448, said: "Recent decisions of high authority have established a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." On this same point the court in Pleasants v. Fant, 22 Wall. 116, 123, said: "It is the province of the court, either before or after the verdict, to decide whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor. Not whether on all the evidence the preponderating weight is in his favor,-that is the business of the jury; but conceding to all the evidence offered the greatest probative force which, according to the law of evidence, it is fairly entitled to, is it sufficient to justify a verdict?" The same rule is reiterated in Schofield v. Railway Co., 114 U. S. 615-619, 5 Sup. Ct. Rep. 1125, (citing cases,) when the court says: "It is the settled law of this court that when the evidence given at the trial, with all the inferences which the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict

for the defendant." See, also, Marshall v. Hubbard, 117 U. S. 415-419, 6 Sup. Ct. Rep. 806; and Railroad Co. v. Bank, 123 U. S. 727-739, 8 Sup. Ct. Rep. 266; and Finney v. Railroad Co., 3 Dak. 270, 16 N. W. Rep. 500. The case at bar comes within this rule. The proper verdict was one against the plaintiff, and for the defendant, and the court did not err in directing it. Neither did the court err in rendering judgment for the defendant on return of the verdict as directed. The judgment of the district court is affirmed. All the justices concurring.

Boss v. NORTHERN PAC. R. Co.

(Supreme Court of Dakota. October 2, 1888.)

MASTER AND SERVANT-NEGLIGENCE OF MASTER-PROVINCE OF JURY.

In an action against a railroad company for personal injuries, where the evidence shows that plaintiff, a servant of defendant, while lawfully riding on one of its trains, and standing on the lowest step of the car platform, was struck by a switchsignal, which stood so near the track that it scraped the sides of the cars in the train, it is error to withdraw the case from the jury.1

Appeal from district court, Cass county; WILLIAM B. MCCONNELL, Justice. Taylor Crum, for appellant. Ball, Wallin & Smith, for respondent.

THOMAS, J. This action was brought by the plaintiff, Herman Boss, against the defendant, the Northern Pacific Railroad Company, in the district court of Cass county, to recover damages for personal injuries received by him. through the alleged negligence of defendant's servants. The testimony, as disclosed by the record, tends to show the following facts: On the 15th day of December, 1885, the plaintiff was severely injured by being struck by the switch-signal which stood at a point in defendant's yard at Fargo, between the round-house and depot. On the day of the accident plaintiff was at work for defendant as a section hand, and was employed, with others, in handling wood near the shop or round-house. Shortly after noon, the plaintiff, with his co-laborers, boarded one of defendant's trains, to go some distance down the railway track to dinner. This was the usual mode of going to dinner by the employes, adopted at the instance and request of the foreman under whom they worked, in order to get back to their work in proper time. The plaintiff, together with his co-employes and other persons, got upon the front platform of the caboose on this train, and, owing to the great number of persons standing on this platform, was forced to stand on the bottom step thereof, and was in this position when the train moved out, and was struck in the back of the head while the train was in motion by the lever or signal of a switch that stood in the yard, and near the track on which the train was moving. The stroke knocked him senseless and from the train. This switchsignal was constructed within four feet of the railway track, and, when in an upright position, was that distance from said track, but when in a leaning or Islanting position was so near as to come in contact with the sides of the cars as they passed along the railroad track; and on the day of the accident this

1One entering the service of a railway company has a right to assume that its track and bridges are so constructed as to render them safe for employes in the performance of their duties. Railroad Co. v. Irwin, (Kan.) 16 Pac. Rep. 146, and note. The peril arising from a switch-stand, which extends to within 9 or 10 inches of a passing car, is not one assumed by a brakeman on entering the railway company's employment, Pidcock v. Railway Co., (Utah,) 19 Pac. Rep. 191; nor is the peril arising from a bridge built over the track so low that a brakeman cannot stand erect on top of a car, he having no notice of such danger, Railroad Co. v. Wright, (Ind.) 17 N. E. Rep. 584, 16 N. E. Rep. 145, and note; nor from a signal post within a foot of a ladder on the outside of a car, Scanlon v. Railroad Co. (Mass.) 18 N. E. Rep. 209. In general, as to the risks assumed by railroad employes, see Brice v. Railroad Co. (Ky.) 9 S. W. Rep. 288, and note; Stephens v. Railroad Co., (Mo.) Id. 589; Judkins v. Railroad Co. (Me.) 14 Atl. Rep. 735, and note; Goff's Adm'r v. Railroad Co., 36 Fed. Rep. 299; Woods v. Railroad Co., (Minn.) ante, 510.

lever or signal scraped the sides of the cars of the train on which plaintiff was riding. There is some testimony tending to show that this kind of a switchsignal should have been placed at least six feet from the railroad track in order to be safe, and that such was the distance that they were generally placed by all railroad companies. The situation and condition of this switch-signal was known to the defendant, while the plaintiff had no knowledge of it whatever. The case was tried to a jury, and upon motion of defendant the district court directed a verdict in its favor. Appellant appeals from the judgment of the lower court in favor of defendant, and from an order denying plaintiff's motion to set aside the verdict and grant a new trial, which motion was based on a statement of the case and affidavits of plaintiff and one Bowman. To all of said rulings the plaintiff duly excepted.

The principal contention of plaintiff is that, under the evidence, he was entitled to have the case submitted to the jury, and the court therefore erred in directing a verdict for defendant. We think that under the evidence, as we view it, plaintiff was rightfully on the train, and therefore not in the position of a trespasser, and the railroad company was bound to use ordinary care and diligence for his safety, in default of which it would be liable for his injury, unless he contributed to it by his own culpable negligence. We think that there is some evidence tending to show want of ordinary care and skill on the part of defendant in the construction of said switch-signal, which was so close to the track as to jeopardize passengers on its trains. We are also of the opinion that the evidence is not of that character which would warrant the district court in holding as a matter of law that the plaintiff was guilty of contributory negligence in bringing about the accident. It may have been negligence to stand on the steps of the platform while the train was in motion, but it was not of such a character as to be the proximate cause of the injury, for he had the right to believe that there was no such obstruction in proximity of the train as the one that inflicted the injury. He had the right to presume that the defendant's railway track was free from such dangers. If he had been jostled from the train, or had been pushed therefrom by his co-employes, then his negligence in standing on the platform would have perhaps so far contributed to the injury as to prevent a recovery. It not infrequently happens that the injury complained of is so clearly traceable to the misconduct or negligence of the plaintiff that it is the duty of the court to apply the law to the facts without the intervention of a jury, but in the case at bar the facts are by no means of that character, and the case should have been submitted to the jury, under proper instructions from the court. The principles announced in the foregoing opinion are so familiar, and so elementary in character, that we deem it unnecessary to cite any authorities in support of them. The court erred in directing a verdict in favor of defendant, and the judgment, for that reason, is reversed, and a new trial ordered in accordance with the views expressed in this opinion. All the justices concurring.

REED . SMITH.

(Supreme Court of Nebraska. November 28, 1888.)

COSTS-TAXATION-ATTACHMENT-SHERIFF'S FEES.

In the taxation of costs there was allowed to the defendant, upon the dissolution of the attachment, an item of sheriff's fees of $190, "for care, preservation, and custody of attached property." The charge was not itemized, except as above, nor was it contained in the sheriff's return, but appears to have been taken from the fee-book of the district court. The order of the district court denied the plaintiff's motion to retax the said item of fees. Held error, and the court instructed to require the sheriff to itemize the particulars of said charge, and make a showing of the facts upon which it is founded.

(Syllabus by the Court.)

Error to district court, Sherman county; TIFFANY, Judge.

William H. Reed moved the court for an order retaxing the costs in a suit in the district court. The motion as to certain items was overruled, and plaintiff brings error.

James E. Philpott, for plaintiff in error.

COBB, J. This cause comes to this court on error to the district court of Sherman county for alleged error in its judgment upon a motion to retax the costs in a case then lately determined in said court. There was an attachment issued in the main case, and a large amount of property, both real and personal, attached by the sheriff. On motion of the defendant the attachment was quashed, and the attached property discharged, at the cost of the plaintiff, and judgment for said costs rendered in favor of the defendant. Among the items of costs taxed to the plaintiff under such proceeding were the following sheriff's fees: "Posting 698 copies of order of attachment, $174.50; care, preservation, and custody of attached property, $190.00." The plaintiff moved the court for an order requiring the clerk to retax the costs in the said items of fees of said sheriff in such sums and amounts as the court should direct; in which motion it was alleged that said items were illegal, excessive, and not authorized by law. Said motion was made upon so much of the record in the case as contains and shows the order of attachment, the sheriff's return thereto, the said sheriff's proceedings had and done thereunder, and the order of the court dissolving the said attachment. Upon the hearing of the said motion, the court decided and adjudged "that the said motion be sustained as to 603 notices posted on lots, and as to 15 notices posted on lands, and that the said sheriff be allowed no fees or compensation for posting the said 618 notices, so as by him heretofore charged as part of his fees, etc., and that the said clerk retax the costs accordingly; and the said motion, as to the other items therein contained, be overruled." Section 33, c. 28, p. 357, Comp. St. 1885, provides that "no sheriff, coroner, or constable shall be entitled to receive, on mesne or final process, any fees provided for in this chapter, unless he shall return upon the process upon which any charge shall be made the particular items of such charge." No item of charge for care, preservation, or custody of attached property is contained in the sheriff's return to the order of attachment, but it does appear in the certified copy of the fee-book of the district court, returned with the record. How it got there does not appear. It is doubtful that the case is covered by the provision of statute cited by counsel for plaintiff in error, and above quoted, as no provision is contained in the chapter quoted from providing compensation to officers serving orders of attachment for the care, preservation, or custody of the attached property. Yet, doubtless, the court would have the power to award compensation as fees in a proper case, and upon a satisfactory showing to an officer rendering such services. In the case at bar it does appear, however, from the sheriff's return to the order of attachment, that the personal property attached, or a part of it, was delivered by him to A. J. Smith upon a forthcoming bond with security. We are all of the opinion that the taxation of the item of $190 to the sheriff for care, preservation, and custody of attached property, without a showing of the facts upon which a claim for such amount was founded, or even an itemization of the charges constituting such sum, was wrong. The order of the district court is therefore reversed, and the cause remanded to that court for further proceedings, and with instructions to that court to require the sheriff to itemize the particulars of said charge, and make a showing of the facts upon which it is founded. Judgment accordingly. The other judges

concur.

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