Page:North Dakota Reports (vol. 1).pdf/284

 right-of-way purposes, it would be none the less liable, if it was a mere trespasser upon such land. We find no error in the ruling of the trial court admitting this evidence.

The trial court refused to sustain defendant's objection, made at the beginning of the trial, to the introduction of any evidence in support of the complaint, for the reason, as defendant’s counsel claims in his brief, that the averment and proof of the absence of negligence on plaintiff's part was an essential part of plaintiff's case. The rulingis assigned as error here. We hold that the ruling was not error. Respectable authority can be found sustaining defendant’s position, but the decided weight of recent precedents justifies the ruling of the trial court. Railroad Co. v. Gladmon, 15 Wall. 401; Railroad Co. v. Horst, 93 U. S. 291; Hocum v. Weitherick, 22 Minn. 152; Wilson v. Railroad Co., 26 Minn. 278, 3 N. W. Rep. 333; Robinson v. Railroad Co., 48 Cal. 409; Potter v. Railroad Co., 20 Wis. 533; Mares v. Railroad Co., (Dak.) 21 N. W. Rep. 5; South-West Va. Imp. Co. v. Andrew, (Va.) 98. E. Rep. 1015; Hickman v. Railroad Ca., (Miss.) 5 South. Rep. 225; Thompson v. Railroad Co., 51 Mo. 190.

Testimony was introduced by the plaintiff, against the objection of defendant, tending to show that the plaintiff had, as a matter of fact, established a fire-break around the property which was destroyed. This ruling is claimed to be error. We think otherwise. It is true that it was not technically necessary for the plaintiff to either allege or prove the absence of contributory negligence in order to make out a prima facie case, but the admission of such testimony under the circumstances could not prejudice the defendant’s case, and we cannot therefore undo the results of the trial for that reason. If plaintiff had not established a fire-break around his premises, such omission would not constitute negligence per se; but in such case the question of whether or not such omission would constitute contributory negligence would be a question for the jury to decide under proper directions from the court. Karsen v. Railroad Co., 29 Minn. 12,11 N. W. Rep. 122; Kellogg v. Railroad Co., 26 Wis. 223; Erd v. Railroad Co., 41 Wis. 65. We do not think the later Wisconsin case cited by counsel for the appellant (i. e., Murphy v. Railroad Co., 45 Wis. 222) overrules the authority of